The Department of Homeland Security and US Citizenship and Immigration Services have published a long-awaited regulation covering employment-based green card processing, non-immigrant work visas and employment authorization documents (EADs). At 181 pages, the regulation is a major one affecting a potentially very large portion of the country’s skilled immigrant workers as well as potentially millions of others that might apply for EADs.

I will reserve judgment in this blog post and will, instead be writing a separate opinion piece regarding what USCIS did right and wrong. But I can tell you that this regulation is mostly disappointing. USCIS failed to execute on the President’s November 2014 mandate and actually made things worse in several areas.

In its summary, USCIS notes it is providing the following new benefits:

– improved processes for US employers sponsoring and retaining immigrant and non-immigrant workers
– greater stability and job flexibility for such workers, and
– increased transparency and consistence in the application of agency policy

The goal is to make it easier for US employers to hire and retain workers who are the beneficiaries of employment-based green card petitions and also to increase the ability of workers to seek promotions, accept lateral positions with current employers, change employers, or pursue other employment options.

The proposed rule also makes significant changes to the Employment Authorization Document application process. The 90 day time limit for adjudicating petitioners would be scrapped “in light of national security and fraud concerns.” However, USCIS is sweetening this by providing for the automatic extension of employment authorization for timely filed I-765 renewal applications.

USCIS is providing for a 60 day comment period from the day the proposed regulation is published in the Federal Register (likely December 31st). That would make the deadline for submitting a comment the end of February.

Executive Summary Section

Retention of employment-based immigrant visa petitions – For EB-1, EB-2 and EB-3 applicants with petitions pending 180 days or more, no automatic revocation based solely on withdrawal by the petitioner or termination of petitioner’s business. Not applicable in cases of fraud, material misrepresentation, revocation or invalidation of a labor certification or USCIS error. Beneficiary would still need a new job offer and “may need another immigrant visa petitioner”

Priority Date Retention – Priority date retention will be available so long as the initial immigrant visa petition was approved and the approval has not been revoked for fraud, material misrepresentation, invalidation of a labor certification or USCIS error.

Nonimmigrant grace periods – There will be a new one-time grace period, during an authorized validity period, of up to 60 days whenever employment ends for E-1, E-2, E-3, H-1B, H-1B1, L-1, or TN nonimmigrants. No working during the grace period. Also, DHS “in its discretion may eliminate or shorten the 60-day grace period on a case-by-case basis.”

Eligibility for employment authorization in compelling circumstances – DHS proposes to allow E-3, H-1B, H-1B1, L-1, or O-1 NIVs to apply for separate employment authorization for a limited period if there are compelling circumstances that, in the discretionary determination of DHS, justify the consideration of such employment authorization.

H-1B licensing – For occupations requiring a license, H-1B application requirements satisfied if a license application is filed, but not obtained because a state or locality requires a social security number of the issuance of employment authorization before accepting or approving much requests. Also deemed satisfied if the unlicensed worker will be working in a state that allows such individuals to work under the supervision of a licensed senior or supervisory personnel.

EAD extensions – Automatic 180 day extension of employment authorization so long as 1) a renewal I-765 application is filed based same category as previously issued EAD (except if it’s a TPS recipient); 2) the renewal is filed before the current EAD has expired; and 3) the person’s eligibility for employment authorization continues beyond the expiration of the EAD and an independent adjudication of the individual’s underlying eligibility is not a prerequisite to the extension of the EAD (note: assuming this would be in situations where an underlying I-130 or I-140 have not been approved yet). The long-standing 90 day time limit regulation for adjudicating EADs would be eliminated.

USCIS cites the following INA and other statutory language to back up the proposed changes:

– INA Section 205 for authority to determine how and whether to revoke immigrant visa petitions
– INA Section 214(a)(1) authorizing DHS to prescribe rules for the terms and conditions of nonimmigrants
– INA Section 274A(h)(3)(B) authorizing DHS to extend employment authorization to noncitizen of the US
– INA Section 212(n)(2)(C) on whistleblower protections
– INA Section 214(c)(9) authorizing DHS to impose training/education fees on H-1B petitioner
– AC21 Section 103 H-1B cap exemption statute
– AC21 Section 104(c) H-1B six year extension statute for per country backlogged green card applicants
– AC21 Section 105 H-1B portability statute
– AC21 Section 106(a) and (b) H-1B six year extension for 1+ year green card applicants
– AC21 Section 106(c) – green card portability
– Section 101(b)(1)(F) of the HSA stating DHS mission is to “ensure the overall economic security of the United States is not diminished by efforts, activities and programs aimed at security the homeland.”


Proposed Regulatory Changes

Implementation of AC21 and ACWIA – After 15 years, USCIS is proposing rules relating to these two important statutes.


1. Extending H-1B NIV status for people being sponsored for green cards

a. Extensions for people affected by per-country limitations (AC21 104(c)

– extensions will continue to be granted in increments up to three years; extensions will be granted in three year increments

– beneficiaries need not be currently in the US in H-1B status when the H-1B is filed to benefit fro this provision.

– H-1B employer need not be the same employer as listed in the qualifying immigrant visa petition

– H-1B worker can use this provision more than once with different employers and combined with new I-140 non-revocation language, USCIS believes it will make workers more mobile.

– The AC21 104(c) benefit does not extend to spouses and children in H-1B status, but H-4 extensions permitted under the exemption. Thus, each spouse in H-1B status would need separate green card applications to get a 104(c) extension or the spouse without a green card application will need to change to H-4 status. Editor’s note: USCIS still has not addressed the problem of an H-1B to H-4 applicant maintain work authorization during the switch.

b. Extensions for people with lengthy adjudication delays (AC21 106(a) and (b).

– extensions for one year increments will be available to beneficiaries not currently in the US at the time the H-1B petition is filed.

– extensions permitted even if the H-1B petitioner is not the employer that filed the labor certification or I-140 that is the basis for the extension.

– employer must demonstrate that the beneficiary has previously held H-1B status and that 365 days have elapsed or will have elapsed between the filing of a labor certification or an employment-based immigrant visa petition and the end of the 60year limitation on H-1B admission.

– one year extensions permitted until either the labor certification expires (180 days after the labor certification approval is the I-140 hasn’t been filed under the 2007 DOL rule) or a final decision is made to 1) deny the labor certification, 2) revoke or invalidate the labor certification, 3) deny the immigrant visa petition, 4) revoke approval of the visa petition, 5) grant or deny the application for adjustment of status or for an immigrant visa, or 6) administratively close one of these applications. Denials or revocations are not considered final during the period in which one is eligible to file an appeal or during the actual period an appeal is pending.

– AC21 106(a) and (b) extensions may be filed up to 180 days before the requested H-1B start date. The request can include time left in the 6-year period (including recapture time) plus one year but the approval granted will not exceed three years.

– USCIS is changing its regulations to conform to 2007 DOL regulation regarding substitution of labor certification beneficiaries and will only allow I-140s to be filed based on substitution if the request was filed before July 16, 2007.

– Each approval under 106(a) and (b) will provide the beneficiary a new date upon which the limitation on H-1B admission will be reached. Only one petition may be used to support an extension and multiple petitions cannot be aggregated.

– The AC21 106(a) and (b) benefit does not extend to spouses and children in H-1B status, but H-4 extensions permitted under the exemption. Thus, each spouse in H-1B status would need separate green card applications to get a 106(a) and (b) extension or the spouse without a green card application will need to change to H-4 status. Editor’s note: USCIS still has not addressed the problem of an H-1B to H-4 applicant maintain work authorization during the switch.

Beneficiaries of AC21 106(a) and (b) must file an adjustment of status or immigrant visa application within one year of a visa becoming immediately available. The period is tolled, however, during any period in which priority dates unavailable and a person is not eligible to file and the one year clock will reset if priority dates retrogress. Also, failing to file within a year may be excused by DHS if the failure to apply was due to circumstances beyond the beneficiary’s control.


2. Job portability under AC21 for certain applicants for adjustment of status

INA Section 204(j) provides that EB-1, EB-2 and EB-3 petitions will remain valid with respect to a new qualifying job offer when the worker changes jobs or employers if an application for adjustment has been filed and remains pending for 180 days or more. The new job needs to be in the same or a similar occupational classification as the job that was the subject of the original visa petition.

– USCIS proposes that the EB-1, EB-2 or EB-3 petition will remain valid if the petition is approved and either

1. the employment offer from the petitioning employer is continuing and remains bona fide; or
2. pursuant to section 204(j), the beneficiary has a new offer of employment in the same or a similar occupation, the application for adjustment of status based on this petition has been pending 180 days or more and the approval of the petition has not been revoked.

Under #2, the new offer can be for a different position with the original employer sponsor, a new US employer or based on self-employment. Under either option, the individual and the employer must intend that the individual will be employed under the continuing g or new employment offer (including self-employment) upon the individual’s grant of a green card.

– While a beneficiary need not have been employed at any time by the employer that filed the I-140 or the employer presenting a new offer of employment under 204(j), DHS must determine in all cases that the relevant offer was bona fide. In 204(j) cases, DHS must still determine that the original sponsoring employer intended to employ the beneficiary upon approval of the application for adjustment of status. For new employers, DHS must determine that the employer intends to employ the beneficiary in the offered position and the beneficiary intends to work in that position, upon approval of the adjustment of status.

– DHS is proposing to amend its rules to prohibit approval of an application when the immigrant visa petition on which it is based has been revoked. However, revocations will become much less frequent since automatic revocations will no longer happen when I-140s have been approved for 180 days and an employer seeks revocation or an employer goes out of business (except in cases of fraud, material misrepresentation, invalidation or revocation of a labor certification or USCIS error). That petition on its own won’t serve as the basis for obtaining an immigrant visa or filing an adjustment of status since there is no longer a bona fide employment offer related to the petition. A new I-140 approval would be needed. Current rules don’t require a new petition when an employer withdraws an I-140 after an adjustment of status application is filed if the beneficiary qualifies for adjustment portability. That will be expanded under the new rule to include cases where the initial petitioning employer goes out of business.

– The I-485 form is going to get a new supplement that will assist DHS in confirming that a job offer described in an employment-based immigrant visa petition is still available at the time an individual files an adjustment application. That same form will be submitted affirmatively by an applicant when requesting adjustment portability. No fee is being considered at this point.

– To qualify for 204(j), applicants will submit the new supplemental form plus 1) a written attestation signed by the applicant and employer describing the new position and its requirements, 2) an explanation demonstrating the new offer is the same or similar as the original one and 3) a copy of the I-485 receipt showing the application has been pending for 180 days or more.

– “Same or similar” proposed memorandum language from earlier this month incorporated. “Same occupational classification” is one that “resembles in every relevant respect” the occupation for which the underlying employment-based immigrant visa petition was approved. “Similar occupational classification” is one that shares “essential qualities or has a marked resemblance or likeness with the occupation for which the underlying employment-based immigrant visa petition was approved.


3. Job portability for H-1B nonimmigrant workers (AC21 Section 105)

– Statute authorizes H-1B beneficiaries to accept new or concurrent employment upon the filing of a non-frivolous H-1B petition as long as the worker has been lawfully admitted into the US, has not worked without authorization subsequent to that admission and is in a period of authorized stay. Employment authorization continues until the petition is adjudicated.

– DHS proposes making portability available only to H-1B beneficiaries currently in the US in H-1B status.

– in “bridge petitions” where a third or later employer files an H-1B petition on behalf of a worker, a subsequent portability petition is dependent on the approval of an extension of stay in the preceding case(s).

– the I-9 rules are to be changed to recognize H-1B portability situations and add them to the class of workers authorized for employment incident to status.


4. Calculating the H-1B admission period

– DHS is adding to the regulation its long-standing policy that time spent outside the US does not count against the six year validity period for H-1B employment. Beneficiaries seeking to recapture time must establish through objective documentary evidence – such as passport stamps, I-94s and airline ticket stubs – that the H-1B worker was outside the US. Applicants may also submit charts and other complementary evidence. If an H-1B nonimmigrant worker counted against the H-1B cap seeks recapture of time, seeking recapture doesn’t re-subject the worker to the H-1B cap. If the H-1B had not counted against the H-1B cap, the recapture petition would be cap-subject unless the new employment is also exempt from the cap. The burden of proof in recapture cases is on the H-1B petitioner. The current policy regarding giving workers outside for more than a year the option of choosing to either recapture time and continue being counted against the cap or re-subjecting to the cap and getting six new years of time continues.

– An H-1B petitioner need not demonstrate that time spent outside the US failed to interrupt the H-1B period for which recapture is sought unless it is relevant to a determination of the employee’s admissibility.

– Any trip of at least one 24-hour day may be recaptured.


5. Exemptions from the H-1B cap under AC21 and ACWIA

a. Employers not subject to the H-1B numerical limitations

– AC21 exempts from the cap those workers employed (1) “at an institution of higher education…, or a related or affiliated nonprofit entity,” or (2) “at a nonprofit research organization or a governmental research organization.”

– exemption applies to workers employer directly by such en employer and to workers employed “at” such qualifying institutions even if they are not directly employed by them.

– under current policy, employed “at” works when the worker is located physically at a qualified entity and the workers is performing job duties that “directly and predominantly” further the normal, primary, or essential purpose, mission, objectives or function of the qualifying institution, organization, or entity.”

– under the proposed rule, employed at works if 1) the majority of the worker’s duties will be performed at the qualifying institution, organization or entity and 2) such job duties directly and predominantly further the essential purpose, mission objectives or functions of the qualifying institution, organization or entity. USCIS gives examples of higher education or nonprofit or governmental research). The petitioner must establish this eligibility based on a preponderance of the evidence showing a nexus between the work performed and the purpose, mission or objectives of the exempt entity.

– The fee exemption definitions of “institution of higher education” will now apply to cap exemption. That would eliminate for-profit colleges from claiming cap exemption. The fee exemption definitions of “nonprofit research organization” and “government research organization” are also going to apply to cap exemption.

– “related or affiliated nonprofit entity” is being defined both for ACWIA and cap exemption purposes. It includes nonprofit entities that are

– connected or associated with an institution of higher education through shared ownership or control by the same board or federation;
– operated by an institution of higher education; or
– attached to an institution of higher education as a member, branch, cooperative or subsidiary

– DHS will expand the definition of “affiliated or related nonprofit entities” to include nonprofit entities that have entered into formal written affiliation agreements with institutions of higher education education and are able to establish 1) an active working relationship with the institution of higher education for the purposes of research or education and 2) one of their primary purposes is to directly contribute to the research or education mission of the higher education.

– DHS offers the example of VA hospitals affiliated with a medical school based on a contract or agreement for the training or education of health personnel.

b. Counting previously exempt H-1B nonimmigrant workers

– under current policy, people working at cap exempt institutions of higher education and related or affiliated nonprofit entities who change to cap subject employers are subject to the cap at the time of the transfer. That rule is being extended to nonprofit research organizations and governmental research organization. USCIS may also revoke the petition for concurrent employment of an H-1B worker at a cap subject employer when the worker is no longer employed by a cap exempt petitioner. Under existing policy, such employment could continue until the point when an extension of the cap exempt petition was needed.


6. Whistleblower protections in the H-1B program

ACWIA included provisions barring H-1B employers from retaliating against employees for providing information to the employer or any other person, or for cooperating in an investigation of the employer’s violation of its LCA attestations. The proposed rule codifies in regulation the current policy of considering whistleblowing an “extraordinary circumstance” that would justify a late filing of a new H-1B petition filed by a new employer. Evidence of the whistleblowing should be provided in the new petition including a copy of the complaint filed by the worker and evidence that retaliatory action has been taken.


B. Additional changes to further improve stability and job flexibility for certain workers.


1. Revocation of approved employment-based immigrant visa petitions

– current rules provide for automatic revocation of I-140s when a labor certification is invalidated, the petitioner or beneficiary dies, a petitioning employer withdraws the petition and the petitioning employer’s business closes.

– the proposed rule amends the regulations so that EB-1, EB-2 and EB-3 immigrant visa petitions that have been approved for 180 days or more would no longer be automatically revoked based only on withdrawal by the petitioner or termination of the petitioner’s business. Exceptions are made for revocation based on fraud, material misrepresentation, invalidation or revocation of a labor certification or USCIS error.

– the rule will affect the retention of priority dates, job portability under section 204(j) of the INA and extension of status for H-1B workers. “An employment-based immigrant visa petition that is subject to withdrawal or business termination, however, cannot on its own serve as the basis for obtaining an immigrant visa or applying for adjustment of status as there is no longer a bona fide employment offer related to the petition.” So a new I-140 would be needed or, in a 204(j) case (which requires an adjustment application to already be filed), a new offer of employment

– the proposed rule would continue to require a valid and qualifying offer of employment (unless the requirement for such an offer is exempted by law) at the time a worker seeks to apply for or receive adjustment of status.

– for adjustment portability, the main thing changing is employers going out of business won’t be a basis for denying adjustment of status. Employers revoking I-140s was already not an issue in adjustment portability cases.


2. Retention of priority dates

– Current rules don’t specify how priority dates are determined in petitions not requiring a labor certification (such as EB-1 and EB-5). The proposed rule clarifies that the priority date will be the date the completed, signed petition is properly filed with DHS.

– current rules allow retention of priority dates for use with subsequently filed EB-1, EB-2 and EB-3 petitions, but not where DHS denies or revokes an approval under Section 204(e) or 205 of the INA. The rules will be changed to allow retention in all cases except where revocation happens due to 1) fraud or a willful misrepresentation of a material fact, 2) a determination that the petition was approved in error, or 3) revocation or invalidation of the labor certification associated with the petition. The ability to retain priority dates would begin immediately upon petition approval even if the petition is revoked based on petition withdrawal or business termination less than 180 day after approval.


3. Nonimmigrant grace periods

– The ten day grace period before and after the relevant validity period in H-1B cases is to be extended to E-1, E-2, E-3, L-1 and TN classifications).

– A grace period of up to 60 days during the period of petition validity is also being provided

a. Extending 10-Day grace periods to certain nonimmigrant classifications

– during the 10 day grace period at the beginning and end of the H-1B period, a worker is “admitted” but not authorized to work. This grace period is being extended to the other classifications noted above.

b. Providing a 60-Day grace period to certain nonimmigrant classifications

– For E-1, E-2, E-3, H-1B, H-1B1, L-1 and TN classifications, DHS is proposing a one-time grace period of up to 60 days or until the existing validity period ends, whichever is shorter, whenever employment ends for these individuals. This will allow nonimmigrants sufficient time to respond to a sudden or unexpected change related to their employment. Such time may be used to seek new employment, seek a change of status to a different visa category or depart the US.

– employers in the grace period would be maintaining status for purposes of filing for a change of status. But employment authorization is not granted during the grace period so H-1B portability employment authorization doesn’t apply and a new petition would need to be approved before employment could begin with a new employer.

– dependents of eligible principle nonimmigrant workers also benefit from the grace periods

– 60 day period may be shortened or eliminated as a matter of discretion


4. Eligibility for employment authorization in compelling circumstances

– examples are given of people facing medical or other emergencies, workers facing retaliation from an employer for engaging in protected conduct (i.e. whistleblowing) or facing significant business or economic harm to the employer or worker.

– individuals would be eligible for one year of employment authorization when they meet the following criteria:

1) the individual is currently in the US and maintaining E-3, H-1B, H-1B1, O-1 or L-1 nonimmigrant status;
2) the individual is the beneficiary of an approved immigrant visa petition under the EB-1, EB-2 or EB-3 classification;
3) the individual does not have an immigrant visa immediately available; and
4) the individual can demonstrate to the satisfaction of DHS compelling circumstances that justify an independent grant of employment authorization.

Why the restrictions?

1 – DHS believes the other changes would significantly decrease when the rule is needed
2 – NIV workers will have significant incentive to choose other options since this would cause the person to relinquish non-immigrant status, thus restricting his or her ability to change nonimmigrant status or adjust status to that of a lawful permanent resident (e.g. consular processing would be needed)
3 – DHS anticipates that employment authorization based on compelling circumstances will not be available to a nonimmigrant worker solely because his or her statutory maximum time period for NIV status has been reached or if the tendered compelling circumstance with within his or her control.

“Compelling circumstances” not being defined in order to retain flexibility, but four circumstances are given for qualification:

– Serious illnesses and disabilities – a serious illness or disability entails the worker moving to a different geographic area for treatment or otherwise substantially changing his or her economic circumstances

– Employer retaliation – the worker is involved in a dispute regarding the employer’s illegal or dishonest satiety as evidenced by a complaint filed with a government agency or court and the employer has taken retaliatory actions

– other substantial harm to the applicant – The worker can show he or she will be unable to timely extend or otherwise maintain status, or obtain another nonimmigrant status, and absent continued employment authorization, the applicant and his or her family would suffer substantial harm; For example, an H-1B who has industry-specific skill set in a high-tech sector for years with a US entity terminates its business and the same or similar industry doesn’t exist in the worker’s home country and the inability to find a job would cause significant hardship.

– significant disruption to the employer – the worker can show that he or she is unexpectedly unable to timely extend or change status, there are no other possible avenues for the immediate employment of such workers with that employer and the worker’s departure would cause the employer substantial disruption to a project for which the worker is critical. Examples include

6. an L-1B nonimmigrant sponsored for permanent residence and the employer goes through corporate restructuring such that the worker no longer qualifies as an intracompany transfer
7. an H-1B employer loses cap exemption status and the worker is part of a critical project

The stated goal is to give someone interim relief while a new NIV status is sought.

– Extending past one year – The worker must continue to face compelling circumstances or the worker has a priority date that is less than one year from the cut-off date for the relevant employment-based category and country of nationality in the most recent visa bulletin published by DOS

– No one is eligible for initial or extension EAD if at the time of filing the EAD, the person’s priority date is more than one year beyond the date on which immigrant visa numbers were authorized for the principal applicants preference category and country of changeability according to the latest Visa Bulletin. [NOTE: This appears to conflict with extension language]

– applicants must appear in person and get biometrics and are ineligible if they have been convicted of a felony or two or more misdemeanors.

– spouses and children eligible if the principal spouse or parent is granted an EAD. the dependent’s EAD will not have a validity period longer than the principal applicant. Extension rule above applies to dependents as well.

– DHS seeking comments on appropriate validity fr grants of employment authorization and the nonimmigrant categories eligible for employment authorization.


5. H-1B Licensing Requirements

– Statute says that if H-1B beneficiary requires a state or local license to fully perform duties, the petition may not be approved unless the beneficiary possesses the license. But some states won’t issue license without an H-1B isa or a social security number (which requires prior approval of the H-1B visa). DHS currently approves for a year if the license application was filed at the time of filing the H-1B petition and the only obstacle to getting a license is the lack of a social security number of employment authorization.

– this policy is being formalized in the regulations; one year approval period being retained and no extensions permitted unless license in hand at that point.

– no license needed for H-1B issuance if the job is in a state that allows an unlicensed individual to fully practice the occupation under the supervision of licensed senior or supervisory personnel. An examiner must still look at the nature of the proposed duties to ensure they are at a high enough level to meet the definition of a speciality occupation.


C. Processing of applications for Employment Authorization Documents

– EADs to be automatically extended up to 180 days if new I-765s filed before card expires, application in same green card category (unless it’s a TPS-based application) and the person continues to be employment-authorized incident to status beyond the EAD expiration date or are applying under a category that does not first require adjudication of an underlying application, petition, or request.

– the following categories are eligible for the 180 day extension:

• refugees (a)(3)
• asylees (a)(5)
• parents or dependent children of people who got permanent residency under INA 101(a)(27)(I) (a)(7)
• Citizens of Micronesia or the Marshall Islands (a)(8)
• people granted withholding of deportation or removal (a)(10)
• TPS (a)(12) and (c)(19)
• People with pending asylum or withholding of deportation or removal (c)(8)
• Pending adjustment of status applicants (c)(9)
• People with pending suspension of deportation and cancellation of removal (c)(10)
• Applicants for creation of a record of lawful admission for permanent residence (c)(16)
• Legalization applicants (c)(20) and (c)(22)
• LIFE Act adjustment applicants (c)(24)
• VAWA cases (c)(31)

– H-4s and other spouse-based NIV work cards are NOT eligible for the 180 day benefit.

– No explanation of what process is available if card not adjudicated within 180 days.

– for I-9 purposes, a filing receipt will be needed to demonstrate employment authorization under the new 180 day extension provision

– The 90 day time limit to adjudicate EADs in the current regulations is being eliminated “to address national security and fraud concerns.” And interim EADs eliminated because they would no longer be mandated by the 90 day rule.

– DHS says they remain committed to a 90 day timeframe and will set up system to contact USCIS when 90 day mark is near to request prioritized processing.

Greg Siskind

Greg Siskind

Greg Siskind is a partner with Siskind Susser, PC - Immigration Lawyers. After graduating from Vanderbilt University, he received his law degree at the University of Chicago. He created the first immigration law web site in 1994 and the first law blog in 1997. He's written four books and currently serves on the board of governors of the American Immigration Lawyers Association. He can be reached by email at
Greg Siskind
Share →

106 Responses to Siskind Summary: The I-140/AC-21/EAD Proposed Regulation

  1. Sandeep says:

    I have below questions.

    I have 140 approved,now if I change my employer, Will I able able to get 3 years extension and H4 EAD for my spouce? or to get 3 years extension and H4 EAD I need to go through PERM and 140 process again?

    • Kanagaraj says:

      you no need to file new PERM & I-140 for extending H1 or H4 EAD. You need new PERM & I-140 only for filing I-485.

    • Greg Siskind says:

      Regarding the H-4, I think the new rule works for being able to port H-4 EADs since it only requires an I-140 be approved and the principal continuing in valid H-1B status. Since the original I-140 is harder to be revoked, less likely H-4 EAD disrupted.

      • Sandeep says:

        I have one more question.

        I have 140 approved with employer A, now after this rule if I change my employer to B and if A revokes 140.

        now after few years if I join A again then does he need to file PERM and 140 again?

  2. Ranjan says:

    I have one question.

    I have approved I 140 from my current employer. And I can go to a new employer and the new employer files for H1B extension based on I 140 from previous employer. How many times I can keep getting the H1B extensions based on I 140 from previous employer without filing perm / I140 from new employer. Is it till my priority date is current?

    • Greg Siskind says:

      No limit on number of H extensions, but also no ability to file for adjustment of status until new I-140 approved. So at some point, a new green card is going to be needed.

      • Sam says:

        Just one point though, that H1B extensions can be done only uptil the point when the Priority date of the old I 140 is NOT current. So If someone changes company it becomes imperative that he completes PERM + I140, in the new company, before the priority date of the OLD I-140 becomes current.

        • sathish says:

          I140 approved in EB2 with previous employer and If new employer starts PERM in EB3 ..then everything is screwed right??

  3. fa says:

    Illegals can get Eads thru daca, but legals have to provide a compelling reason to be eligible for ead..

    What were the folks at uscis smoking when writing rules?

  4. Kanagaraj says:

    I have an approved I-140 and is crossed 180 days from approval date. Can I go back to my home country and come back after 10 years when my Priority date is about to be current? Of course, on a H1B from a totally new employer? Will I be subjected to H-1b Cap or I can use the I-140 to get the new H-1B?

    • fa says:

      Yes. You can apply for consular processing when priority date is current. If employment Is with consulting firm, there is a likely for 221g during immigrant visa processing ..

      Alternatively you can come on h1b… you will need to check with an attorney if that would be subject to cap.

      • Greg Siskind says:

        The job offer that was the basis for the I-140 needs to still be open or a new I-140 can be swapped without loss of the priority date.

        • Deep says:

          Sorry Greg and Team I am probably asking some what similar question but don’t think there is a clear answer yet .Could you throw some light on this a bit more probably for few of us this could be a silver lining in all this mess. I have an approved 140 for last 3 years in EB2 if after this is in effect can I go back to the home country with that 140 however leaving the employer that holds that 140 and when dates are current come back with a new employer with fresh H1 would the new H1B be subjected to the cap? Also assuming I come back on a new H1B does the new company have to file for new PERM and get would need a new140 to swap with the old one.

  5. Ram says:

    Hi Greg,

    I agree with your comments that nobody will qualify for EAD with the kind of compelling circumstances they have put for people to provide. They just brought out a useless rule where nobody will benefit, why does USCIS write 180 pages and make people read it?Looks like it is a new years’ joke in a sarcastic way.


  6. Prasad says:

    Guys, time to migrate again to a different country (Canada, Australia etc.,)

    • Puneet says:

      I worked in Florida for 4 years. Fed up of their screwed visa system. I moved to Australia from US 2 years back. Loving it here. Took me 3 months to get a PR (Permanent Visa) visa. Lots of high paying jobs, Free healthcare, one of the best Social Security system in the world. Govt pay you almost $500 every month per child. Govt pays 80% of child care expenses if both husband and wife are working. I wish I had never gone to US. Wasted 4 years of my life.

      • FBDev says:

        Hi Puneet,
        I am also pissed of with the screwed up visa system and is planning to move to Australia. Can you please provide me insight or maybe have a call with me in person? I want to know more about lifestyle there since you have already been living there. Please email me your contact info at: fbdev(dot)victory(at)gmail(dot)com

    • FBDev says:

      I agree with you Prasad. This system along with anti-immigrants have made our life hell, even though they are aware that they are eating and living on our tax money.

  7. Obama is one hell of f**ked up president. USCIS folks were smoking legal marijuana in Colorado while writing this rule. I feel sorry for Mr. Siskind who went through the trouble of wasting his day to read and comprehend this rule.

    • fa says:

      Obama disclosed immigration action in Nov 14 and it’s been a year his plans are even close to being implemented. The dapa and h4 ead are already up in courts.

      This is a conspiracy from the government to create an illusion to potray they are concerned with the need for immigration. In reality immigrants are constantly being given the finger that we can’t do anything rather than beat them up in the forums..

      We need to think deep as to why visa bulletin in October was revised….then… the delays in implementing 140 ead rule, then creating another rule with restrictions of compelling reasons in 140 ead….

      There is no hope any rule that will be implemented will not be taken up in courts. Our best bet is to wait for the priority date to be current in the visa bulletin.

      • Venkat says:

        Hi Greg,

        If I have a approved 140 (for over 2 years) from employer A. And suppose I join employer B who just apply H1’s (wont sponsor – mean wont apply PERM and 140) and when the time comes where my date is current…. Can I go back to employer A (if they are willing to employ me) as its 140 is still valid?

        Please share your thoughts

  8. Mike says:

    USCIS has shown YET AGAIN that it is a cesspool of corruption and is 100% controlled by the immigration lawyers’ lobby and corporate lobbyists. The American dream is a MIRAGE used as a ‘bait and switch’ entrapment tool to lure aspiring skilled immigrants into decades of temporary status. The illegal aliens can now apply for EAD’s thanks to DACA/DAPA. But a skilled immigrant graduates with a STEM degree from a US university, is sponsored for a green card by his/her employer, pays all taxes and follows the laws of the land and does everything else by the book and what does he/she get in return? – DECADES of being “chained” to an employer as a temporary “non-immigrant”! Sounds like a heck of a fair deal, doesn’t it LOL? Did someone say America, the land of the free? More like America, the mirage of broken promises.

  9. Sam says:

    My I-140 was approved on May6 2015 ,in October I have moved to new Employer at the same time My Old Employer Filled Withdrawal of I-140 on October 26 which is Less 180 days of Approval.

    My question is I’m still able to port the date?

    • Greg Siskind says:

      Sorry Sam. Unfortunately, I don’t think the proposed rule is going to help your situation. USCIS is likely going to continue automatically revoking cases like yours until the new rule takes effect.

    • Greg Siskind says:

      Anonymous – I think it depends on people’s situations. Getting a new employer to file a PERM petition isn’t always easy and PERM cases do get denied. So there’s risk if people try to take advantage. But you’re right that it’s an improvement over the status quo where a jerky first employer can extract revenge by pulling the I-140.

  10. Anonymous says:

    If you think calmly, you can use I-140 similar to EAD i.e. u can change jobs whenever and how many times you want using old I-140 and renew your H1B status. Isn’t that what people do when they get EAD while waiting for GC? You also have 60 days incase u get laid off ever. When your priority date comes to current, you can get GC.

    It seems people are disappointed that they have to do PERM/I-140 again but actually you don’t need to do it at all till ur date is near to current. You approved I-140 after 180 days in a way becomes your EAD and ticket to remain in US till your date becomes current. I think it is a big win for job mobility.

  11. How they came to know that even a single person will fall into those compelling reasons? What a waste….

  12. Sunny says:

    Hi Greg

    Thank you for the detailed analysis . I agree with you that its a bit dissapointing . If they had atlleast included that you dont need a new PERM/i140 after job change that would have been good .

  13. Abhijit says:

    Hi Greg,

    Say if I have a 140 approved from employer A and join a new employer B who files for new labour/ 140. And if for some reason if either get denied, will I still be able to transfer by H1 to employer C with 3 year extension using 140 approved from employer A? Does the denial from employer B leave a mark in any way which might haunt later when filing GC from employer C?


  14. Venkat says:

    Hi Greg,

    If I have a approved 140 (for over 2 years) from employer A. And suppose I join employer B who just apply H1’s (wont sponsor – mean wont apply PERM and 140) and when the time comes where my date is current…. Can I go back to employer A (if they are willing to employ me) as its 140 is still valid?

    Please share your thoughts
    (submitting again as my earlier post went as a reply to others post)

  15. Ravi says:

    I am on H1b, working as a physical therapist with my current employer who also has filed I 140 petition. My question is, would I be able to work with other employer part time or as needed WITHOUT filing the other H1b petition?

  16. Justice says:

    Guys, we need national media attention and bring the attention of the entire nation to this ridiculous system that is modern day slavery of Chinese and Indian immigrants in America. Seriously, the system is the most racist form of discrimination ever and is the least meritocratic of all. This is not what America should be about. 99% of Americans don’t know about this racist system. The public ignorance is giving the politician-profiteers the freedom to do whatever they please.

    Youtube Campaigns, Daily Protests, Hunger Strikes, Occupy DC, Strikes, whatever it takes. Let’s pick a common day to take a day off from work to all fly to DC in tens of thousands of people. The blacks needed Martin Luther King to force the law to change and the society to awaken to provide equal rights to all. Now is our turn. People stuck in green card backlogs today are like the blacks in the 60s. If we just wait or complain or just tweet until our fingers come off or comment to our heart’s content, nothing will change. Nothing stops USCIS from disregarding our comments. After all, we are not voters and our voice does not matter to them. Let’s talk to everyone around us about the plight we are suffering. Let fellow Americans join our cause and march the street with us. Let’s make viral videos and tell our stories.

  17. Ram says:

    Hi Greg,

    I have an approved I-140 from June 2009 from an old employer. Recently when I checked the status on the USCIS website, it says this

    Case Was Received and A Receipt Notice Was Emailed
    On November 2, 2015, we received your Form I-140, Immigrant Petition for Alien Worker , Receipt Number LIN***********, and emailed you a receipt notice. It is being processed at our Nebraska Service Center location. The notice describes how we will process your case. Please follow the instructions in the notice. If you move, go to to give us your new mailing address.

    What could have happened here?



  18. Anonymous says:

    What is the meaning of one time 60 days grace period.

    Does it mean it can be used only once in a lifetime.

  19. Marie says:

    Hi Greg,
    I have an approved I 140 and my I 485 has been pending for 8 months now. With this new rule, can I change job with similar occupation without having to transfer my h1b and without my new employer filing my PERM again? Thanks

    • Inthewilderness says:


      You dont need this rule at all. Under existing rules itself you can change jobs without H1B as long as you have filed I-485 and it has been pending for 180 days. (I assume you have applied for EAD along with your I-485, if not you can apply anytime). As long as your new job is same/similar to your old I-140, you dont need to file for a new PERM with the new employer. You dont need anything in this rule at all, the existing rules are good enough for people with pending I-485. Talk to a lawyer if needed.

      Good luck

  20. ssk says:

    Not sure why people from India are so disturbed. It is US ppl who should worry. India gets major chunk of outsourcing jobs. You can have decent life in India at 600 USD a month (similar to what will cost 2.5-3000usd per month in US), while a working family of 35-40 with a low end mba makes 3000-4000 usd take home. India grows at 9%, unlike US, and many of my friends have been director in ecommerce companies. Cost of living is low. If you are so interested in immigrating look at Singapore and may be aussie. Singapore grows at 5-7% growth rate and will benefit by Asian growth. People stuck in queue should not get disturbed – relook at your life, rather than living miserly like slave you can make decisions to move back. So look at your own country – that is becoming more open day by day in this protectionist world.

    • Anonymous says:

      Let me guess – 1) You are an Indian 2) You already got your citizenship or at least GC 3) You are just trying to see who all are suffering the way you suffered in past but now free. How many points are correct?

      • ssk says:

        What value are you talking about? I get pain looking at people stuck in such queues when they do not have to… Do not get me wrong, nothing is going to happen now for 8-10 years. and how long can you hold on to employers and status? I am well aware of pain of other people, but I see it only getting worst. One recession and H status holders will be thrown out. No points to guess I am Indian. Do not think much on GC lines. I am an MBA (top 5 b schools in india) and have been to over 20 countries. Same happened in UK and see how Indians are thrown out from there. Do not waste youth in GC queues, this rule is total bullshit – neither is hr213 getting passed. People who file gc today are not going to get it for 10-15 yrs, even in eb2. India and singapore banks are doinf real good.

        • Sandeep says:

          Kabir Das ji has said – Heera tahan na kholiye jahan kunjaron ki haat…
          My friend, not many takers for your line of thought here. But then again folks wouldn’t be here if they thought like you.

    • Venkat says:

      why are you here? Anyone in pain(or trying to improve) will be disturbed if they are human…. . This is Greg’s blog and we are seeking help from him… first of all u came to someones blog without proper purpose…that shows what is ur value….

      if u cant help shut everything …stop wasting our time and mind your business….

  21. Ravi B says:

    What is acceptance cutoff date in this context ?

  22. Lax says:

    I was not expecting an I-140 EAD to come thru, because if they wanted to do it, then they could have just extended the “Acceptance Cutoff dates”.

    However, I was surely expecting I-140 portability and was surprised that it did not happen. Why would they do it??? Maybe the lawyers’ lobby is very strong and they will take the biggest hit if I-140 is made portable (follow the money). Also, maybe USCIS wants work coming to it regularly to keep itself busy… maybe.

    However, i feel what we need to comment on in the comment-period is I-140 PORTABILITY, and not I-140EAD because that is NOT HAPPENING… PERIOD.


  23. Ram says:

    Actually nothing happened here in the 180 pages except that you can keep your H-1B extended after 180 days of filing I-140 and approved I-140 cannot be revoked by the employer after 180 days. 60 days grace period is the time that USCIS gives you time to pack your bags and leave US if you’re unable to find a job. I thought USCIS could have done a better job by helping legal immigrants, but they always choose to do the opposite.

  24. cl10216 says:

    Hi Greg,

    I have a question. Sorry if this question has been repeated already. I have an approved I-140 in hand and it has been 180 days since the approval. If I change employer (similar job) at this point, can I use the I-140 from my previous employer to apply for change of status, when my priority date becomes current?


  25. Sanjay Sahu says:

    Hey Greg,

    Thanks for taking trouble and wasting your time to write this blog which is considered a slap and huge disappointment on face of legal EB immigrants waiting in queue for decades.

    I have now decided to stop following all forums/wasting my time and decided to leave it to god where I have to be and in what position.

    He will guide me and surely will provide a good direction .

  26. honest_guy says:

    When does ones i-140 expire, assume my old employer does not withdraw it, whats the last date on which i can renew my h1b?

  27. Jitendra says:

    Hi Greg,

    Thanks for sharing the details. I think it will not useful for the immigrates. We are waiting from 2010 for the new EB changes. 9 years in H1B.
    Still the same political game. As of my knowledge they are not going to provide any benefits to legal immigrants who are paying the taxes, medicare and all. For their border security purposes, they increased the visa fees. For paying the money they need immigrants. They will talk only for the illegal people.

    This just a stunt game. Thoroughgoing the peanuts to immigrates. These governments never going to help the immigrants. Not only the governments no one hep or fight for the immigrants. This is true.

    I am sorry if any one feel bad on my words.

    Happy New Year..

  28. Prash says:

    If I stay with the same company and accept promotion, Do I still need to file new PERM/ 140 after promotion, when filing 485? In the above summary you have mentioned that the rule to is encourage promotion/ lateral movement, hence checking on the same

    • Sam says:

      Hi Greg,

      May Be having a standard template for putting the comments would help people and maximise the impact. Incase you have any pointers on the same then it will very beneficial to all following this forum and share if you gave some tips on how best we can be more specific, factual and not emotional for the submitting the comments.

      Also is direct portability of I-140 across multiple employers, ever possible. because I-140 is a property of the Employer and not the Employee (unlike 1-485) ?. Hence would requesting for enabling that portability may be always a lost cause. Do we have any other creative options, of working around this legal hurdle.

      a. Can PERM be made portable across multiple employers. So employees donot have through the hassle of the PERM filing process, repeatedly. This will save, almost 4 months of pre PERM filing effort and then another 8-10 months of PERM processing window.

      b. Or, Can the I 140 me made a Employee’s property after 180 days it is approved. If that can be done then portability of the same may be legally possible across different Employers.

    • Sam says:

      Hi Greg,

      May Be having a standard template for putting the comments would help people and maximise the impact. Incase you have any pointers on the same then it will very beneficial to all following this forum and share if you gave some tips on how best we can be more specific, factual and not emotional for the submitting the comments.

      Also is direct portability of I-140 across multiple employers, ever possible. because I-140 is a property of the Employer and not the Employee (unlike 1-485) ?. Hence would requesting for enabling that portability may be always a lost cause. Do we have any other creative options, of working around this legal hurdle.

      a. Can PERM be made portable across multiple employers. So employees donot have through the hassle of the PERM filing process, repeatedly. This will save, almost 4 months of pre PERM filing effort and then another 8-10 months of PERM processing window.

      b. Or, Can the I 140 me made a Employee’s property after 180 days it is approved. If that can be done then portability of the same may be legally possible across different Employers

      • Greg Siskind says:

        Your first idea on PERM being made portable. I don’t see USCIS and DOL ever doing that, though they could have effectively given this result if they had proceeded with the more generous proposal that they had already determined was legally permissible – no I-140 revocations and EADs for anyone with I-140s more than a year old.

        As for the I-140 being an employee’s property, USCIS is sort of doing this with the non-revocability part of this regulation. Also, a 2nd circuit case decided this week also basically recognizes the employee’s rights in the I-140 petition.

  29. scorp100 says:

    Hello Mr Greg,
    Thanks for this blog and sharing your thoughts.
    I have a question and you may be able to provide answer. I have approved I-140 and I am in process of getting 3 year H1 extension. Once that comes through, can I go back to home country, get visa stamped, stay there for one or two years and come back on same H1B? I work for a consulting firm and my end client may not be same. Will that h1b still be valid (and not subjected to cap)?

    • Greg Siskind says:

      If you have an approved H-1B and visa stamp and then leave for more than a year, you should be able to reenter as long as the H-1B approval remains valid and the terms of the H-1B are still applicable (i.e. everything in the original petition remains valid). Your employer might need to amend the H-1B if that’s no longer the case. You shouldn’t need to be recounted against the cap.

  30. Kavi says:

    Hi Greg,

    Thank you so much, for the step by step analysis of the proposed regulation. This is one of the best breakdown analysis i have read anywhere.

    I have one Question related to I-140 Priority date porting. Since the I-140 will be valid much longer, some immigrants may want to change jobs to related industries. In this case do the Previous Job and the New job need to be in the same area?

    For example if i was working as an Sr. Electrical Engineer, can i move to Software Engineering or Financial Analyst role and still be able to port my I-140 Priority date?

    • Greg Siskind says:

      I do think that would work. This is not like porting in the adjustment context where you need to show jobs are the same or similar. You’ll have a new PERM and I-140 and get the old priority date.

  31. Asheesh says:

    Hello Greg,
    Please allow me to ask a few questions. I am talking about cases who have an approved I-140 from employer A which is more than 180 days.
    1) Old Rule – If I change employer from A to B, employer B will need to restart the process even if Employer A does not revoke the I140
    New Rule – Same; employer B will have to restart the process. However, the executive summary of the proposed rule says:
    Retention of employment-based immigrant visa petitions – For EB-1, EB-2 and EB-3 applicants with petitions pending 180 days or more, no automatic revocation based solely on withdrawal by the petitioner or termination of petitioner’s business. Not applicable in cases of fraud, material misrepresentation, revocation or invalidation of a labor certification or USCIS error. Beneficiary would still need a new job offer and “may need another immigrant visa petitioner”
    I see the retaining of the petition (I-140) as distinct from retaining of PD. If the intention is to only let the beneficiary retain the PD, then should they not have used term ‘priority date’ instead of ‘petition’? And why does it say “May need another…”. Why ‘may’ and not ‘will’.. are there any exceptions?

    2) Retention of PD: I believe even the old rules allowed you to retain the PD even if the old employer revoked the I140. I think there was just this one case where it was denied. The new rule probably makes it crystal clear that they can’t take away the PD at all, period! So, it’s a a clarification of the rules, but not really a change. Am I correct?

    • Greg Siskind says:

      1. Some people don’t need labor certifications so that’s why I say “may”. NIWs, Schedule As, EB-1s Also, the rule pertains to people in the post-adjustment period and if they qualify for portability, then they don’t need a new PERM or I-140

      2. There is confusion on this point because USCIS has taken inconsistent positions in the past and there is no actual rule on the subject. The agency has gone back and forth on this over the years. So that part of the proposed rule is good – USCIS will finally set a clear rule on this.

      • Asheesh says:

        Thank You Greg. So looks like the interpretation of immigration experts like you is that for people who have I-140 approved but are not current, the process has to begin from the stage of labor application, in case we switch employers. Having said that, I do not understand why do they want to to keep cases like our’s (I-140 approved for more than 180 days) different than cases under AC21 with more than 180 pending AOS. What is the best way to get our voice to DHS in a concerted way rather than one-off comments? This looks to be very employer friendly rule, and I do not understand what major benefit the employee gets, which was supposed to be the reason of this reform

  32. Prax says:

    Hi Greg,

    I am wanting to make a comment on this rule requesting that I140 portability be provided in a more meaningful way by allowing people with any approved I140 that has survived the 180 day revocation period clause , use the same to file the AOS application when their date becomes current (rather than file a new immigrant petition) and as long as the job is in the same or similar category. This is similar to what is already provided for pending AOS applicants who have switched jobs after 180 days.

    Wanted to check does DHS have the authority to do something as simple like this or does this require a congressional change?

    This is the least that the DHS can do to fully implement I140 portability, doesnt make sense if we need to do labor/i-140 again while filing AOS. Given that providing EAD’s is an eyewash now.

    • AB says:

      Prax, you are talking of reasoning, which USCIS has shown, it does not have. All I see is some clarifications of the rules which previously existed, but were open to interpretation. All they have done is put those loopholes to rest.
      This country is as corrupt as any other country — eventually, the corporate and lawyer’s lobbying won. I would not be surprised if there are Republicans in USCIS who do not want to see any changes to better our condition. Thus, all this is an eyewash. Keep no hope. Money counts! And lawyers, corporates and Special interest group has millions time more than you or I do. This is a land of slavery, and not a land of opportunity. Better that they just cancel our H1s and we go back…

      • Greg Siskind says:

        Lawyer lobby? I suppose you think the moon landing was staged and 9/11 was an inside job. There are no lawyers lobbying against you. The sooner that ridiculous idea is abandoned the sooner people can focus their energy in the right direction – Congress and the White House each of whom bear the responsibility for the predicament you’re in. Saying lawyers would lobby for you to be kept in permanent immigration limbo is like saying doctors want you to stay sick so you continue to have to visit them for help.

        • bholu says:

          Its true that lawers and doctors want perennial income from helpless people….its known fact…

          • Anonymous says:

            come on man.. They may be some people like that.. Greg spent a lot of time analysing this and also helped on the VB filing date retrogressal.. . Please dont try to spoil the name,,, I know you may be angry at USCIS…

    • Greg Siskind says:

      There is a legal theory that would support what you’re requesting and my friend Cyrus Mehta has been advancing it most prominently. The idea is that as long as some visas remain in a fiscal year, the government has authority to accept as many adjustment applications as they like. It’s likely how they managed to accept 300,000 adjustment applications in the summer of 2007. This Administration, however, is pretty timid and is generally guided by fear of being sued by anti-immigrant groups (even though they usually win in the end if they bother to fight).

      • Prax says:

        Thanks for the reply Greg. The turkey theory is abt allowing early filing of AOS applications for approved I140 cases. My question is more about allowing an AOS application when the date becomes current using a old I140 application as long as the job is same or similar rather than a new immigrant visa application. Can DHS allow something like this or this requires congress action. If while filing AOS we need a new immigrant petition its not real portability.

  33. Ram says:

    Hi Greg,

    I had asked this question before, but didn’t receive any reply, so I’ll try once again.I have an approved I-140 from June 2009 from an old employer. Recently when I checked the status on the USCIS website, it says this

    Case Was Received and A Receipt Notice Was Emailed
    On November 2, 2015, we received your Form I-140, Immigrant Petition for Alien Worker , Receipt Number LIN***********, and emailed you a receipt notice. It is being processed at our Nebraska Service Center location. The notice describes how we will process your case. Please follow the instructions in the notice. If you move, go to to give us your new mailing address.

    What could have happened here?



  34. Alex says:

    Hi ram I would like to share that the same happened to me as well , but I couldn’t find a sponsor to continue with my case so I am guessing we would be out sadly .

  35. Ram says:

    Hi Alex,

    My online status hasn’t changed since Nov 02. Did your online status change or is the same as mine till now?



    • Alex says:

      Hi ram , still the same since 2007 so imagine it’s being so long waiting for a change, and honestly I don’t know what to do about it and as far as I see this new rule is not gonna help , that’s my guessing . Your welcome . Alex

      • Ram says:

        Hi Alex,

        In your and my case, I checked on other forums and the answers I got were “it is more of a technical glitch”

        • Alex says:

          In that case I have no clue then , so I must wait and see but as I said before I am not certainly sure what is going to happen .

          • Ram says:

            Hi Alex,

            I think as long as we have our approval notices, we should be okay. We’ll only find out when we apply for EAD/H-1B extensions.



            • Alex says:

              Hi Ram , let’s cross our fingers we might finally have a good ending after all , thanks for replying back , and obviously thanks to Greg for helping us to share on this blog our concerns !!!! God bless every one .Alex

  36. perm says:

    Compelling circumstances EAD Question :
    If I have compelling circumstances and my priority date also current, will I get EAD and Green card together?

  37. USmayNotbeWorthy says:

    I have a basic question here. So when we change jobs on I 140, do we need to seek H1b sponsorship? I was hoping the rule would allow us to change jobs on I 140 without H1b process. It is so hard to find jobs on visa sponsorship especially when you are in management roles.

  38. Ram says:

    Hi Greg,

    Is it possible to get H-1B extensions, if the approved I-140 in withdrawn by the previous employer after 5 years?



  39. GAURAV says:

    Hi Greg,

    What does “Invalidation of a labor certification” mean, if some employer want to revoke I-140 then they can invalidate the labor certification so the power remains with employer unless “invalidation of a labor certification” is quite difficult ?

    Please throw some light on “invalidation of a labor certification”

  40. Asheesh says:

    Hello Greg,
    By now I think it’s clear that this is a drama enacted by the USCIS probably with the an implicit approval from the WH. I see no other reason that that to come with 2 quick disappointments – visa bulletin and now this proposed rule.
    However, I feel that there is a need to give our very opinions on the inability to even port the approved I140 to the new employer. What purpose or sections of law could have forced USCIS to not allow porting I140 to the new employer? Other than making another $5000 on a new application from the golden egg called immigrant, what other purpose could it serve? Even if they allow porting of I140 that does not give us the EAD or GC, so why should there be the requirement to restart the whole process? It defeats the stated goal of making it easier for the employee. This rule is as good as a piece of trash and we should congratulate USCIS what they wanted to do even while pretending that they intended to make life easier. They didnt. They are sold to corporate lobbyists who want to keep employees as slaves. Shame on this 180 + page document.
    How do you suggest the immigrant community should take this up during public feedback so that these dumbheads hear how we feel?

  41. Sajith Balan says:

    Hi Greg

    My name is Sajith. My employer has filed for my PERM in October 2015 (priority date of 10/08/2015). I will be exhausting my 6 years of H1B quota on May 29, 2016 (3 years on L1B and 3 years on H1B). What are the options that I have if my PERM and I-140 is not approved by May 2016. If I go back to India, can my H1B extn (after my I-140 is approved) be still be applied from India and how much time do you think it will take if its filed under premium? Can I do the same if I relocate to Canada? If so can I do my H1B stamping in Canada or that has to be done in India? Please do reply with my options.

    Thanks a ton!


  42. Sandeep says:

    Hi Greg,

    i have 2 questions

    1.I have 140 approved from Employer-A .Once this rule gets approved if I change the employer to Employer-B.
    After 1 year due to some issue if I get lay off from Employer-B, then how much time will I have to come back to H1B status? Will I get 140 EAD based on this compelling condition? Or will I get 60 days grace period to get back to H1 status?

    Now After I come back to H1B status and Join the Employer-C and if again I get lay off from C as well then Can I apply for 140 EAD one more time? How much time will I get to come back on H1 status?

    2.I have 140 approved from Employer-A for more than 180 days.Once this rule gets approved if I change the employer to Employer-B and A revokes my 140. Now B applies for PERM and 140 but due to some reason my 140 or PERM gets denied or rejected then Will I be able to keep getting the 140 benefits such as 3 years extension and H4 EAD?

    • AB says:

      1. Will I get 140 EAD based on this compelling condition? Or will I get 60 days grace period to get back to H1 status? –> Obviously, this is not a compelling situation. If that’s the case, please will be praying for layoffs!! You’ll get 60 days grace period
      You can apply for I140 EAD after you fulfil all the conditions – a) have a sponsor b) your date is within 1 year c) compelling situation. Basically, nutshell, you can’t get an EAD. Corporate lobbies have made sure that we live as slaves. 180 pages is basically garbage, a crude new year joke on us, and a rule made to favor companies. Remember, $$ also wins, everything else is just talk!
      2. As you will get to keep I140 from employer A even if they revoke (hurraaaayyyyy!!!), you will be able to get the benefits of H1 extn. I am not sure if that would be 1 year or 3 years though. I think it would be 3 years. H4 EAD — I believe as long as you have a valid H1 and the I140 (which you’ll have as it becomes your property based on the proposed rules), you can keep getting H4 EAD (again hurraayyyyy!!)

      If we have not understood by now that we are 2nd grade employees in the land of the free and the land of the brave, its time we understand that. We are cash cow, who would keep giving them immigration fees year after year… If you have time at your hands, I suggest look for Canada, Singapore, or best still – our own country.

  43. Anonymous says:

    Hello Greg,
    I have an i-140 which is passed 180 days and if I get promoted to a managerial/administrative role in the same company, will my employer have to file for a new PERM+i140 again under the new AC21 regulations?

  44. VJ says:

    Hi Greg ,

    If I have an approved i140 for more than 6 months from a non profit H1b ( cap exempt) will I be able to move to a for profit H1b job using the new rule ?


    • Anonymous says:

      In short, will the “transfer” to the for profit H1B counted as capped ? It used to be counted as capped before .. but with the new rule will it be capped ?

      Thanks Greg !

  45. […] But as the proposed rule is approximately 181 pages long, I would instead recommend reading the summary of the proposed rule written by fellow Siskind Susser Law Firm attorney, Greg Siskind, which is available at: […]

  46. […] focus is not to explain every aspect of the proposed rule, and refers readers to Greg Siskind’s detailed summary, but suggests that the DHS also consider adding a rule to allow early filing of an I-485 adjustment […]

  47. […] the Obama administration’s committed to and tellingly, immigration attorneys are apparently ‘disappointed’ with the rule. It’s possible that the multiple court-challenges to Obama’s immigration […]

  48. […] the Obama administration’s committed to and tellingly, immigration attorneys are apparently ‘disappointed’ with the rule. It’s possible that the multiple court-challenges to Obama’s immigration […]

  49. madnanavira says:

    I had a I140 from employer A that had the priority date of 10Feb2010. I switched to employed B on July2014 who has currently filed the PERM. In the mean time Employer A revoked the I140 on Sep2014.
    Basically my I140 was in approved status for about 4 years.

    1. With this new rule, Can I retain my old priority date of 10Feb2010, when my new Employer B files the I140 ?
    2. In the new proposed rule, it looks like after 180 days the I140 is not eligible for automatic revocation. In my case will USCIS consider my revoked I140 as not revoked since it was active for more that 180 days ?

  50. divye says:

    Hi Greg,
    I am new to your blogs and really admire the way you have been helping folks with accurate info . Please allow me to ask few questions specific to my scenario.
    I have an approved i-140 from previous employer(not withdrawn) and approved labor from current employer. I have a copy of my previous i-140 approval. My current employer is about to file my fresh i-140. I am really worried about retention of my old Priority date of 2012. Per my current employer, the process of retaining PD only comes while filing 485 and not during i-140 or labor. Is that really correct? Is it possible to port the previous date during i-140 filing itself or would I need to wait until 485 process begins when date is current. Thanks in advance.

    Divye B

  51. shashi says:

    The I-140 EAD is very disappointing, better not to have this rule than to have it in current form.

      • Guest says:

        Cant agree more Shashi. Better to make our country great again and move back …They need slaves not immigrants. It’s as simple as that, This joke of reform is nothing but a concerted effort to ensure that it looks as if things are being done when nothing really happens on ground. I do not agree that USCIS is stupid. They know perfectly what they are doing. Its a hell-hole. This is nothing but corporate money win over common sense. There are far too many groups who would like to see immigrants be in line for 15-20 years than there would be to reform the process. This is a sham. The earlier we understand it, better for us

  52. AX says:

    Hi Greg,
    Please answer my following questions.
    1. My I-140 Petition was approved in 2015 by employer A and my priority date is in 2014. After the ‘Limitation on automatic revocation of certain approved I-140 petitions’ rule gets finalized, I change my job to a new employer B till my priority date gets closer to current. Then if I go back to working to employer A who filed by I-140 in 2015 then can this same I-140 be used for my adjustment of status rather than having a new I-140 filed by employer A or B ?
    2. When is the ‘Limitation on automatic revocation of certain approved I-140 petitions’ rule going to be in effect this year ?

  53. Anonymous says:

    Any information when this rule will out with final submission. Its been nearly 70 days since public commenting completed.

  54. Sri B says:


    I have approved EB3 I-140 from employer A with priority date of Jan 2009. Current employer B is not yet started green card process(EB2) because current employer waiting for approval of proposed new regulations so that they can save money by not sponsoring for GC.

    I have a son who already in high school. Once he becomes 21 years of old then he will not be dependent any more. Also, he is not allowed to consider off campus job while pursuing bachelors degree.

    I believe my current employer B should sponsor GC application based current immigration regulation, not based on proposed new regulations because we do not know when new regulations would be approved and what part of new regulations would be approved. Do you think I have a valid point here? Please let me know what your suggestion?

    Sri B

%d bloggers like this: