Final Rule: Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers

The Department of Homeland Security (DHS) is amending its regulations related to certain employment-based immigrant and nonimmigrant visa programs.

Specifically, the final rule provides various benefits to participants in those programs, including the following: improved processes and increased certainty for U.S. employers seeking to sponsor and retain immigrant and nonimmigrant workers; greater stability and job flexibility for those workers; and increased transparency and consistency in the application of DHS policy related to affected classifications.

Many of these changes are primarily aimed at improving the ability of U.S. employers to hire and retain high-skilled workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents, while increasing the ability of those workers to seek promotions, accept lateral positions with current employers, change employers, or pursue other employment options.

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Employers Exempt from H-1B Numerical Limitations and Qualifying for Fee Exemptions

Description of the Final Rule and Changes from the NPRM In this final rule, DHS codifies its longstanding policy interpretations identifying which employers are exempt from the H-1B numerical limitations (i.e., which employers are “cap-exempt”) and makes conforming changes to the provisions that establish which employers are exempt under ACWIA from paying certain H-1B fees.

DHS also modifies those policies in response to public comment as they relate to:

(1) nonprofit entities related to or affiliated with institutions of higher education, and

(2) governmental research organizations.

DHS is making revisions to the H-1B cap- and fee-exemption provisions where needed to reflect these modifications.

In the final rule, DHS is improving upon and codifying current policy interpreting the statutory cap and fee exemptions for a nonprofit entity that is related to or affiliated with an institution of higher education. See INA 214(c)(9) and (g)(5), 8 U.S.C. 1184(c)(9) and (g)(5); see also final 8 CFR 214.2(h)(8)(ii)(F)(2)(iv) and (h)(19)(iii)(B).

Under current policy, DHS allows nonprofit entities to qualify for the cap and fee exemptions if such nonprofit entities are:

(1) connected or associated with an institution of higher education through shared ownership or control by the same board or federation;

(2) operated by an institution of higher education; or

(3) attached to an institution of higher education as a member, branch, cooperative, or subsidiary.

In addition to proposing to retain this policy (see proposed 8 CFR 214.2(h)(8)(ii)(F)(2); 8 CFR 214.2(h)(19)(iii)(B)(4)), the NPRM proposed to also allow nonprofit entities to qualify for the cap and fee exemptions on the basis of having a written affiliation agreement with an institution of higher education.

As proposed, the regulatory text would have allowed such an agreement to serve as the basis for the cap and fee exemptions if the agreement established an active working relationship between the nonprofit entity and the institution of higher education for the purposes of research or education and so long as one of the nonprofit entity’s primary purposes was to directly contribute to the research or education mission of the institution of higher education.

In the final rule, DHS is replacing the phrase “primary purpose” with “fundamental activity” to avoid potential confusion.

This change makes it clearer that nonprofit entities may qualify for the cap and fee exemptions even if they are engaged in more than one fundamental activity, any one of which may directly contribute to the research or education mission of a qualifying college or university.

Further, the term “related or affiliated nonprofit entity” is defined consistently for both cap-exemption and ACWIA fee-exemption purposes.

This change results in a standard that better reflects current operational realities for institutions of higher education and how they interact with, and sometimes rely on, nonprofit entities.

DHS is revising 8 CFR 214.2(h)(8)(ii)(F)(2)(iv) and (h)(19)(iii)(B)(4) to clarify the definition.

Specifically, instead of referring to “a primary purpose” of the nonprofit entity, the final rule will require the nonprofit entity to show that “a fundamental activity of the nonprofit entity is to directly contribute to the research or education mission of the institution of higher education” (emphasis added).

DHS emphasizes that a nonprofit entity may meet this definition even if it is engaged in more than one fundamental activity, so long as at least one of those fundamental activities is to directly contribute to the research or education mission of a qualifying college or university.

This modified definition should capture those nonprofit entities that have bona fide affiliations with institutions of higher education and is consistent with the intent underlying the statute.

Second, the final rule revises the definition of “governmental research organization,” in response to public comment, so that the phrase includes state and local government research entities in addition to federal government research entities. See 8 CFR 214.2(h)(8)(ii)(F)(3) and (h)(19)(iii)(C).

Both the ACWIA fee and H-1B cap statutes provide exemptions for “governmental research organizations,” without specifying whether such organizations must be federal government entities. See INA 214(c)(9)(A) and (g)(5)(B), 8 U.S.C. 1184(c)(9)(A) and (g)(5)(B).

DHS believes it is reasonable to interpret this language to include state and local government entities and that doing so is consistent with the goals of this rulemaking to improve access to and retention of high-skilled workers in the United States.

DHS further believes that this interpretation will promote and encourage the significant and important research and development endeavors happening through state and local governments.

Third, the final rule codifies other existing policies and practices in this area.

Specifically, the final rule codifies:

(1) the requirements for exempting H-1B nonimmigrant workers from the cap in cases in which they are not directly employed by a cap-exempt employer (final 8 CFR 214.2(h)(8)(ii)(F)(4));

(2) the application of cap limitations to H-1B nonimmigrant workers in cases in which cap-exempt employment ceases (final 8 CFR 214.2(h)(8)(ii)(F)(5)); and

(3) the procedures for concurrent capexempt and cap-subject employment (final 8 CFR 214.2(h)(8)(ii)(F)(6)).

Related Links:
H1B Visa Cap / Quota for FY 2018
H-1B Visa Overview
H-1B Visa Renewal / Extension
H-1B Visa Transfer
Amended H-1B Visa
New H-1B Visa, Cap Exempt
H-1B Visa for Entrepreneurs
H-1B Visa for Teachers
H-1B Visa Attorney Fee
H-1B Visa Complete Do it Yourself Kit

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