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Chris Musillo on Nurse and Allied Health Immigration

HIGH-SKILLED WORKER REGULATION SUMMARY

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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. Unfortunately, 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.


Please read the Musillo Unkenholt Healthcare and Immigration Law Blog at
www.musillo.com and www.ilw.com. You can also visit us on Facebook and follow us on Twitter.

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Updated 01-07-2017 at 01:24 PM by CMusillo

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Comments

  1. ImmigrationLawBlogs's Avatar
    As the above comment suggests, the shelf life of these new regulations may be no more than three days, one of the shortest in our recent immigration history, given the hostility which the incoming new president has shown toward legal immigration, not only illegal immigration, and his indirect, but still clear, threat to undo the reforms of the 1965 immigration reform law.

    That rolling back this law and taking America back to the days of the 1924 white supremacist immigration system could be the real meaning of Trump's threat to abolish "decades - old", "outmoded" immigration laws in his August 31 immigration manifesto is a subject which I will be exploring in further detail in one of my own soon upcoming Immigration Daily blog posts.

    Roger Algase
    Attorney at Law
    Updated 12-16-2016 at 03:21 AM by ImmigrationLawBlogs
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