On Jan. 17, 2017, a new immigration regulation went into effect implementing aspects of the American Competitiveness in the Twenty-First Century Act (AC-21). Signed into law in 2000, AC-21 aimed to address U.S. employers' inability to hire skilled personnel to meet the demands of the modern market. Pub. Law 106-313, 114 Stat. 1251 (Oct. 17, 2000). See also S. Rep. No. 106-260 at 2 (2000). The new regulation, titled “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers,” 81 FR 82398 (Nov. 18, 2016), expands the ways U.S. employers can recruit and sponsor foreign professionals. This article will provide an overview of selected key provisions of the new regulation that enhance an employer's ability to hire and retain foreign workers who are in the U.S. permanent residence (“green card”) queue, who have recently been laid off by a prior employer, or who face compelling circumstances requiring them to seek new employment. The regulation also expands the ways nonprofits can demonstrate they are exempt from the annual H-1B quota.

Greater Flexibility When Recruiting Candidates Already in the Green Card Process

The green card quota system is complex, and depending on where an employee or their spouse was born, the type of job a U.S. employer sponsors him or her to fill, and the date an employer initiates the sponsorship process (the “priority date”), the wait for a green card can be extraordinarily long. Delays imposed by the quota system are often exacerbated by a requirement that the employer and employee intend for the employee to perform the job described in the employer's sponsorship petition (“immigrant petition”) as of the date the green card is approved, and for a reasonable time thereafter. 8 CFR 245.25(a)(3). This obligation can prevent sponsored employees from pursuing career growth through new job opportunities, including new positions with their green card sponsors. It can also inhibit employers from utilizing staff with advancing skills in new roles and deter them from recruiting foreign talent in the green card process with other employers.