What does it mean that the new USCIS rule for Retention of EB* Immigrant workers is not retroactive?

[mavdev]

USCIS has published the new rule (Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers) that goes into effect on January 17th, 2017.

 

Question: If an I-140 was approved in 2015, can that I-140 be still used for 3 year extensions and changing jobs and keeping the priority date (things this rule guarantees)? (refer to the comment below before answering. I am just a bit confused/concerned about the statement: retroactive application of this provision would be problematic)

The comment below is taken from the final text of the rule here.

 

Comment. Several commenters requested that the rule's provision restricting revocation of a petition's approval based on withdrawal or business termination apply retroactively to petitions whose approvals were revoked prior to the rule's publication.

Response. DHS appreciates the commenters' suggestion; however, DHS has determined that retroactive application of this provision would be problematic. Generally, there is a presumption against retroactive application of new regulations. Cf. Bowen v. Georgetown Univ. Hosp., 488 U.S. 204 (1988). Moreover, in this case, retroactive application of the revised automatic revocation provision would impose a disproportionate operational burden on USCIS, as it would require significant manual work. USCIS systems cannot be queried based on the specific reason(s) for revocation, and USCIS would be required to manually identify Start Printed Page 82417and review these cases in order to verify the reason(s) for revocation, thus creating a highly labor-intensive process that would significantly strain USCIS resources. Therefore, the final 8 CFR 205.1(a)(3)(iii)(C) and (D) provisions will apply prospectively from the effective date of this final rule.

[JoeF]

If the I-140 has been revoked before Jan. 17, 2017, it can not be used for H1 extensions. If the is I-140 revoked after Jan. 17, 2017, you can still get H1 extensions.

That's what not being retroactive means. The new rule does not apply to cases where the I-140 was revoked before the rule gets into effect.

[nkalvaku]

Also as per the published rule , such H1B extensions will be in 1 year increment. Is that true ?

[KANIKESH]

Case Overview: 
1. Entry and years of stay in USA details: Jan-02-2010 (7 Years completed) 
2. X employer I-140 details: Approved Jan-05-2015 and revoked Jun-26-2016. 
3. Current employer transferred H1B Visa and approved for 3 years based on i-140 and validity till FEB-2019. 
4. On Dec-16th my current employer closed complete facility(office) at VA and relocated to FL, so employer filed H1B amendment in Premium and Started working at the new facility (FL) for the same project. 
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So USCIS sent H1-B Amendment RFE and USCIS questioning whether am eligible to extend beyond 6 years status based on his revoked i-140(X employer i-140 Approved JAN-5-2015 and revoked Jun-2016). RFE reply end date march-26-2017. 

1. Am I eligible per for new i140 rule effective from jan-17-2017 (apply retroactively to petitions whose approvals were revoked prior to the rule's publication 
just found in the new rule: from rule doc: Therefore, the final 8 CFR 205.1(a)(3)(iii)(C) and (D) provisions will apply prospectively from the effective date of this final rule." So am not sure am eligible or not? 

2. I would be grateful if you could provide me best solution and strategies. Just for info my employer initiated perm process, so it's just preparing document stage, so it may take to file perm 3 or 4 months and + i140 1 months. so what is the solution for my RFE?

[EVKumar]

Is below post true in terms of not being retroactive or the new I140 petition need to filed after the rule implementation date? 01/17/2017 and neeed to wait 180 days before withdrawing the petetion to take advantage of this rule??

One of the imigration attorney was saying the I140 petetion need to be applied after the rule can into effect 01/17/2017 and wait for 180 days to be able to take advantage of this rule.. can someone please clarify whether the new rule just applies to candidates who applied I140 after 01/17/2017 or it applies to existing I140 candidates as well(where i belongs to).

 

appreciate your response in advance..

 

 

Posted December 20, 2016 · 

If the I-140 has been revoked before Jan. 17, 2017, it can not be used for H1 extensions. If the is I-140 revoked after Jan. 17, 2017, you can still get H1 extensions.

That's what not being retroactive means. The new rule does not apply to cases where the I-140 was revoked before the rule gets into effect.

 

[NewI140Rule]

On 12/20/2016 at 5:13 PM, JoeF said:

If the I-140 has been revoked before Jan. 17, 2017, it can not be used for H1 extensions. If the is I-140 revoked after Jan. 17, 2017, you can still get H1 extensions.

That's what not being retroactive means. The new rule does not apply to cases where the I-140 was revoked before the rule gets into effect.

What if employer filed revocation in Dec, 2016 and even in March 2017 status of petition is "On December X, 2016, we received your correspondence..". that means it is active in USCIS side. Will it consider revoked before rule or USCIS will keep this I-140? I have asked this question with 2 different lawyer and got different answer. Please suggest.