The USCIS recently finalized a new
regulation to benefit high-skilled workers which will go into effect on January
17, 2017 – just three days before President-Elect Trump is inaugurated. The regulation was purposely timed to precede
the new Trump administration. Opinions
are mixed on whether the new regulation will stay in effect, or will be
immediately revoked or rewritten when President Trump takes office.
Some important highlights of the
regulation are:
·
New 60 Day Grace Period.
H-1Bs, L-1s, Es, TNs, and Os and their dependents will have a 60 day
grace period in the event that the principal visa status holder loses his/her
job. The grace period will allow these
nonimmigrant visa holders to remain in the US and find a new job. The 60-day
grace period may be provided to an individual only once per authorized validity
period. An individual may be provided
other such grace periods if he or she receives a new authorized validity period
in one of the eligible nonimmigrant classifications.
·
Flexibility for H-1B licensed
occupations. The USCIS will approve H-1B petitions for a
validity period of up to one year where the applicant can prove that the H-1B
employee does not have a US professional license due to the State’s requirement
of a social security number, US employment authorization, or a similar
technical requirement. This has been
USCIS policy, but is now officially law.
Unfortutnly, the USCIS still has much discretion in this area to
interpret local state licensure law.
·
EAD extensions. An EAD will automatically be
extended for 180 days, as long as an EAD extension was filed before the
expiration of the current EAD. This will
provide needed certainty of continued work authorization.
·
Cap-Exempt Employers. The new rule reworks the H-1B
cap-exempt employers rule for employers who are affiliated with an institute of
higher education in two ways.
o DHS is
replacing the term ‘‘primary purpose’’ with ‘‘fundamental activity.” This is a less-restrictive standard than the
current “primary purpose” rule. Going
forward, ‘‘a fundamental activity’’ of the nonprofit entity must be to directly
contribute to the research or education mission of the institution of higher
education.
o A
non-profit that has a formal written agreement that establishes an “active
working relationship” with a University, no longer has to have shared ownership
and control. This is also a lesser standard than at present.
·
Retention
of I-140 in almost all situations.
This new rule clarifies existing USCIS policy that allows Beneficiaries
to generally retain their I-140s even if the prior employer revokes the I-140. This will allow these Beneficiaries to (i)
recapture the I-140 priority date in future green card applications and (ii)
take advantage of spousal work authorization rules without fear of an
underlying I-140 revocation.
