United States: DHS proposes regulation implementing AC21


U.S. Department of Homeland Security proposes to finally implement American Competitiveness in the 21st Century Act, relaxing H-1B visa restraints and other visa restrictions for nonimmigrant foreigners in the U.S.

January 4, 2016

AC21 was signed into law in 2000, but has not been implemented since then, only carried out through informal government guidance. This new law allows it to finally be implemented after 60 days of public discussion.

Key Provisions of AC21:

  • Institutions of higher education, nonprofit organizations, and governmental entities, as well as H-1B nonimmigrants who have been counted in the last six years, are exempt from the annual H-1B cap.
  • H-1B nonimmigrants may work for an employer who has filed an H-1B petition on their behalf.
  • H-1B nonimmigrants may obtain extension of status beyond the normal six years. This is allowed if their employer has filed for labor certification or I-140,Immigrant Petition for Alien Worker, and 365 days have passed, or labor certification has been approved.
  • H-1B nonimmigrants whose I-485 has been pending for 180 days or more may accept a new job in the same or similar sector as the job in original I-140 petition without invalidating underlying petition.

New regulations arrange previously issued guidance from USCIS and makes policy changes affecting foreigners with nonimmigrant visas working in the US or those seeking to obtain employment-based green cards.

What employers should know

  • The provisions contained in the proposed regulation are not yet in effect, and any policy changes will not become effective until the regulation is finalized. USCIS is soliciting feedback on the proposed rule for a 60-day period and will accept comments from the public until midnight on Feb. 29, 2016.

If finalized, the regulation would be a significant development and would have far-reaching implications for foreign workers in the U.S. on nonimmigrant visas.

Source: Totally Expat - Marianne Aronsen