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PRESS RELEASE
Retention of priority dates: Workers with approved Form I-140 petitions, will generally
be allowed to retain their priority date as long as the approval of the initial Form I-140
petition was not revoked for fraud, willful misrepresentation of a material fact,
the invalidation or revocation of a labor certification, or material error. The final rule
provides that Form I-140 petitions that have been approved for 180 days or more would
no longer be subject to automatic revocation based solely on withdrawal by the
petitioner or the termination of the petitioners business.
60-day nonimmigrant grace periods: To further enhance job portability, the final rule
establishes a grace period of up to 60 consecutive days for the E-1, E-2, E-3, H-1B, H-
1B1, L-1, O-1 or TN classification workers, which will allow these high-skilled workers,
including those whose employment ceases prior to the end of the petition validity
period, to have their visa transferred to a new employer in the same visa classification.
10-day nonimmigrant grace periods : To promote stability and flexibility for the E-1,
E-2, E-3, L-1, and TN classifications workers, the final rule provides two grace periods
of up to 10 days, to allow an initial grace period of up to 10 days prior to the start of an
authorized validity period, which provides nonimmigrants in the above classifications a
reasonable amount of time to enter the United States and prepare to begin employment
in the country. The rule also allows a second grace period of up to 10 days after the end
of an authorized validity period, which provides a reasonable amount of time for such
nonimmigrants to depart the United States or take other actions to extend, change, or
otherwise maintain lawful status.
H-1B based on licensing : Where licensure is required to fully perform the duties of
the relevant specialty occupation, the final regulations codify current DHS policy
regarding exceptions to the requirement that makes the approval of an H-1B petition
contingent upon the beneficiarys licensure The final rule will generally allow for the
temporary approval of an H-1B petition for an otherwise eligible unlicensed worker, if
the petitioner can demonstrate that the worker is unable for certain technical reasons to
obtain the required license before obtaining H-1B status. The final rule also clarifies the
types of evidence that would need to be submitted to support approval of an H-1B
petition on behalf of an unlicensed worker who will work in a state that allows the
individual to be employed in the relevant occupation under the supervision of licensed
senior or supervisory personnel
Simultaneously the Federal Rule has eliminated the regulatory provision that requires
USCIS to adjudicate the Form I-765, Application for Employment Authorization, within
90 days of filing and that authorizes interim EADs in cases where such adjudications
are not conducted within the 90-day timeframe.
The final rule also clarifies method for determining which H-1B nonimmigrant workers
are cap-exempt as a result of previously being counted against the cap and the way
in which H-1B nonimmigrant workers are counted against the annual H-1B numerical
cap, including the method for calculating when these workers may access so-called
remainder time (i.e., time when they were physically outside the United States), thus
allowing them to use their full period of H-1B admission.
Contact:
4655 Old Ironsides Drive, Suite 250,
Santa Clara, CA 95054
(408) 845 9411 (Phone)
(408) 777 6375 (Fax)
immigration@bhatiaco.com
www.smoothimmigration.com