I don’t think most people have bothered to read the new proposed regulation on I-140s, AC21 and EADs in its entirety. Most people have been celebrating the new year and, besides, the proposals were hardly earth-shattering in their scope. I spent all day Wednesday reading the 181 page proposal and summarizing it. So I think I’ve got a pretty good handle what the proposal does and doesn’t do. And it helps that I’m an immigration lawyer and write a blog about immigration law and policy.

So I was surprised when I’ve seen quotes like this one from presidential candidate Mike Huckabee:

With Congress away on recess and the American people distracted by the holidays, Obama’s New Year’s amnesty power-play is classic dictator. This 181-page immigration amnesty rule is an unconstitutional assault on America’s workers. Why are we robbing seniors and veterans of their hard-earned benefits to give handouts to illegal immigrants and foreign blue-collar workers? Why did we fight a revolution against the tyranny of one, unelected monarch so we could surrender our Constitution to this out-of-control president?

Huh? An amnesty? Benefits for illegal aliens? Seriously? Where?

It looks like the source of the problem is an article by anti-immigrant reporter Neil Munro (himself, ironically, an immigrant) who posted an article on Breitbart.com making some pretty outrageous claims about the regulation.

We know where the article is headed from the beginning from its headline “Obama’s New Immigration Plan Offers Work-Permits To Foreigners Slated For Deportation.” Where did Munro get this idea? Well, he does do us the service of citing the pages he’s misreading – pages 112 and 113.

So what are those pages talking about? The proposed rule deals with time limits for adjudicating employment authorization documents. Current regulations require DHS to adjudicate employment cards for those eligible in 90 days or less. The list recited on pages 112 and 113 are groups ALREADY ENTITLED TO WORK CARDS under long existing regulations. DHS wants to scrap the 90 day adjudication requirement – which one would think would make immigration restrictionists tingle with excitement.

Coupled with this was a proposal that for people who already have work cards and who are applying for extensions and who are entitled as a matter of law to those extensions to be considered work authorized while they’re waiting on their cards in the mail. Under the current law, any of these people would be entitled to interim work cards if they’ve been waiting more than 90 days and all they need to do to have that right is to make sure they apply 90 days before their existing cards expire.

If that sounds like no big deal, you’re right. No one new is getting a work card and all that’s happening is USCIS will no longer have to go to the trouble of issuing two documents – an interim work authorization document and an actual work card for people entitled to the benefit. Not a single new person is getting a work card under this policy change. The policy change doesn’t change the rules in any way as far as what it takes to qualify for the 180 day automatic extension provision.

Munro might be legitimately confused when he claims 100,000 skilled workers will get employment authorization documents under the proposal. USCIS offers a bizarre estimate of 155,000 as the number of people who will get EADs in the first two years. But as I explained in my summary, the program requires applicants to show “compelling circumstances” and USCIS’ description of what this means is what it sounds like. Highly unusual cases where remaining on an H-1B or other non-immigrant work status is basically impossible and the person or his or her employer are in dire straights as a result. Most people in the know believe only a few hundred people or maybe a few thousand will qualify per year. I certainly will be presenting a pessimistic view to most of my clients who ask me if they’ve got a shot.

Breitbart and other publications are certainly entitled to their opinions regarding how open or closed our immigration system should be. But they need to be called out when they are simply inventing facts as they’ve done here.

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 gsiskind@visalaw.com.
Greg Siskind

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17 Responses to The Page 113 Conspiracy

  1. shyam says:

    We need intellectual , bold folks like you who clarify and correct the idiot’s

  2. Ishtiaq says:

    Thank you for providing up to date information

  3. Dhaval says:

    Thanks Greg and you should go on fox news and take on those guys

  4. Asheesh says:

    Thank you Greg for the summary that you provided. I had a few questions though, based on your interpretation of the new rules
    1. Cases where there is an approved I-140 (of more than 180 days) from my current employer: If I switch to a similar job, can I use my approved I-140 from the previous employer or does the new employer has to re-start the GC process?
    2. Cases where the “DATES FOR FILING OF EMPLOYMENT-BASED VISA APPLICATIONS” as per the bulletin is current – As per the current rules, one can apply for EAD if the dates under this category are current. Does this allow me to switch to new employer under AC21 204(j)? If yes, does the new employer has to sponsor my GC too?


    • Greg Siskind says:

      Under the proposed rule, starting a new green card application is going to be required for people in the pre-adjustment phase of the green card process.

      In post-adjustment cases, portability is available if an an adjustment application is pending 180 days or more. The status quo allows for porting even if an employer revokes the I-140, but not in the case of a former employer shutting down. The new rule would also allow the I-140 to survive in shutdown cases.

  5. Mike says:

    The lying, manipulative, bigoted racists of Fox News are at it again. Nothing new to see here.

  6. Kanagaraj says:

    USCIS may be bringing some more rule that will close the body shopping companies whose only business is to bring people on H1 and send to other companies on a hourly rate. If they are closed, then the estimate of 155,000 may be true. So its kind of interesting.

    • Greg Siskind says:

      You’re very optimistic if you think USCIS is going to give people EADs because they’re laid off. You’ll get 60 days under the new reg to find a new employer and that’s about it. On the other hand, being counted against the H-1B cap is an extremely valuable commodity. I do think that smart companies who lose out in the H-1B lottery because of the five companies that file 25% of the H-1B petitions will begin to realize that offering to petition for a green card (and taking advantage of the PERM premium processing that will hopefully become available under coming DOL changes) gives them something very tangible to offer and we’ll start to see more movement of employees based on genuine market demand.

  7. I140 Approved H1B says:

    We Indian slaves just got another eyewash rule.

    Retain the ever increasing priority date – hell yeah thats what I came here for.

    Trying to find out if I can take my social security money to the northen welcoming lands where I got current long ago ;). Enough of discriminatory immigration policy and bs rules.

  8. Madhu says:

    hi Greg, with proposed role, can we take promotion within same company (same job functions but designation change) without need to file new PERM?

  9. anonymous says:

    I envisage this rule to be driving hundreds of thousands of cheap foreign worker imports into US, severely undermining and undercutting US citizen interests. Here is how that is and how it is going to play out :

    Instead of applying for H1-B (which has yearly quotas and other strict measures), foreign outsourcing companies will start doing PERM/I-140 en masse and wait out the 180-days, then they will import the workers on H1-B into US…do you see the advantage here? there are no yearly quotas to worry about and also H1B extensions are unlimited !!!!!

    • AB says:

      You are really very smart. No wonder Fox has been able to influence intellectuals like you. Keep it up. You cross all parameters of intelligence

  10. I140 approved H1b says:

    Time to educate thousands of potential kids about the stupid immigration rules and plight of skilled immigrants of India and China. Why spend your life savings on school fee for this.

    Regret all my investment and years. And ignorance of public is appalling. Can’t wait to leave.

  11. A concerned EB applicant says:

    Hi Greg,
    Thank you for the insight and correction to those who are ignorant and arrogant.
    I do have a procedural question regarding this new rule.
    When will the new rule be likely enacted? As one who has I485 pended for over 180 days, I am concerned that the new supplemental J would add burden to EB applicants and their employers, and instead of making it easier, the supplemental J will make it more difficult for the employer to sponsor green card for an EB applicant, especially if he or she changes a job.

    I saw the rule is open for comments for 60 days. Will the comments really be counted into the rule makers minds? Is there any chance the supplemental J can be voted off or removed from the rule?

  12. Raj Ch says:


    Having the ‘priority date with in a year from the cut of date (final action date)’ rule, how can USCIS/DOS estimate 155,000 eligibles take the advantage this EO.

    With the recent visa bulletin modernization rule’s filing date change, most of the people within a year were already applied in regular AOS. Seems to me not even 1% of the estimated people are get benefitted by this rule.

    Except keeping approved I-140 alive part, rest is all TRASH.

  13. MMehta says:

    Hi Greg, I was reading the comments that people has published on the DHS website. Most of the comments are against the proposed rule in its current form. Also most comments are talking about either i140/perm portability on change in employment ( no need to file a separate I140/perm) and or I140 EAD after 6 years on H1B and approved I140. I think the current rule as it is now is against the original intent of president executive action, which it should have addressed.

    Do you think there is any chance that DHS will consider these suggestions and modify the proposed rule.

    If not what else the non immigrants worker from backlogged countries should do to present their case better to DHS.

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