USCIS Issues Supplemental Guidance on Processing Petitions Affected by AC21 and ACWIA
U.S. Citizenship and Immigration Services (USCIS) released supplemental guidance on May 30, 2008, relating to processing forms I-140 (employment-based immigrant petitions), I-129 (H-1B petitions), and I-485 (adjustment of status applications) affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) and the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA). The guidance discusses a variety of issues, such as the application of several Department of Labor rules related to labor certification; documentation; H-1B petitions; and portability issues under AC21. USCIS plans to incorporate all previous still-applicable guidance into forthcoming rulemaking relating to various AC21 and ACWIA statutory provisions.
Among other things, the guidance notes that to determine an H-1B beneficiary’s eligibility for an extension of H-1B status under § 104(c) of AC21, USCIS adjudicators are instructed to review the Department of State’s Visa Bulletin that was in effect at the time of filing of the I-129 petition. If, on the date of filing of the H-1B petition, the Visa Bulletin shows that the beneficiary was subject to a per-country or worldwide visa limitation in accordance with the beneficiary’s immigrant visa priority date, the H-1B extension request under AC21 § 104(c) may be granted. To establish the priority date, USCIS may accept a copy of the H-1B beneficiary’s I-140 petition approval notice.
The guidance also notes that USCIS adjudicators are instructed that if credible documentary evidence is provided in support of an H-1B petition that the beneficiary faced retaliatory action from his or her employer based on reporting a violation of INA § 212(n)(2)(C)(iv), USCIS adjudicators may consider any related loss of H-1B status by the beneficiary as an “extraordinary circumstance.” This process may allow the beneficiary additional time to acquire new H-1B employment and remain eligible to apply for a change of status or extension of stay notwithstanding the termination of employment or other retaliatory action by the employer.