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.

——–/

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

Client Reviews

I've had the pleasure of conducting business with this law firm for the last 10 years. They have been nothing but the best for every aspect of immigration need I had. From F1 all the way to citizenship. They're probably the most affordable, knowledgeable, and most efficient immigration law firm out there. Plus, they always provide responses to questions in a very timely manner. Trust me, other immigration law firms will cost you an arm and a leg for the same or less of a service compared to this law firm. Give them a call, check out their website. You will not regret it.
Andy Glasgow
Andy Glasgow
17:26 27 Mar 17
Because of John and his team my wife and I were able to travel back to the states, get married and have a Green Card without any headaches. John’s efforts were amazing and it shows because my wife and I didn’t have to go to the Green card interview. We had a strong enough case to receive the Green card in the mail. If you’re seeking a Lawyer that will be impartial, he’s your guy.
T M
T M
19:18 23 Feb 17
Me & husband went through immigration process which thankfully was made easy with the help and services of Marc Tyler Inc. Our direct contact was John which i want to personally say Thank You ! The service provided was efficient, fast, affordable prompt answers in a timely fashion. I would recommend Marc Tyler Inc to anyone who need immigration done fast, easy, friendly & with no hidden charges.
Aleksandra Stoycheva
Aleksandra Stoycheva
15:27 26 Jan 17
I could not have asked for better service. I will definitely be coming back to get the green card process done. The fees are extremely reasonable and they stick with their clients the entire way. I had so many questions during this process, and each one of them were answered very quickly and with out most professionalism. This firm is a pleasure to work with and I highly recommend them to anyone.
bryan mowrey
bryan mowrey
06:41 25 Nov 16
Marc and John Dorer worked on our case to file for AOS after our L1A was approved.Marc and John are professionals and extremely reasonable-priced. The reason they are able to cut the price is because they don't spend time consulting you or guiding you and will never get on call.All communications are email only, so if you know precisely what you want they will do all the paper-work, follow the trail and get the job done. If you are confused and need advice and consulting, they may not be the right lawyers.But since we were doing our AOS, it worked out perfectly well and they did their job extremely professionally.Would recommend them every time to get the work done.
hardik parikh
hardik parikh
01:58 08 Feb 17
At first I thought I could have very well gone through the green card application process on my own and saved all lawyer fees. Its funny how some lawyers can charge in excess of 2K for this. However at Taylor and Associates the price seemed more reasonable and felt it made sense to go with one at that price. There were some doubts that arose in our mind which they cleared in a timely manner and seemed very knowledgeable in this area. Its for moments like these when having a professional around helps. While we can get busy with our lives and with laws constantly changing, I would definitely recommend them - a small price to pay for peace of mind.
Callistus Pereira
Callistus Pereira
17:51 06 Jun 17
I am US citizen. We hired Marc's firm for my wife's Green Card process, We are extremely happy with their services.They are one of the best service providers in the country. Price is very affordable. John is awesome. He responded to our queries on time with very useful information. We highly recommend this firm to anybody looking for affordable and the best immigration services. it was an awesome experience working with this team.
Narsimha M
Narsimha M
13:57 04 Aug 17

Read More Client Reviews