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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: https://www.federalregister.gov/docu...g-high-skilled
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.
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: https://www.federalregister.gov/docu...g-high-skilled
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.
