Mark A Ivener, A Law Corporation

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.

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Mark A. Ivener, A Law Corporation, a nationally recognized law firm, has successfully assisted hundreds of clients in immigration matters.