DHS publishes new rule affecting H-1B1 and E-3 Nonimmigrants and EB-1 Immigrants

On January 15, 2016, the U.S. Department of Homeland Security (“DHS”) published a new rule that clarified and enhanced opportunities for highly skilled workers from Chile and Singapore who are employed in the U.S. pursuant to the H-1B1 program and for similar workers from Australia in the E-3 category.  Congress created the E-3 and H-1B1 categories after the effective date of many of the existing regulations concerning nonimmigrant work authorization.  As a result, E-3 and H-1B1 nonimmigrants were excluded from some benefits that similarly situated nonimmigrants enjoyed, and for many years there was ambiguity concerning other aspects of their employment authorization in the U.S.  Under this new rule, which goes into effect on February 16, 2016, DHS expressly provides:

• H-1B1 and principal E-3 beneficiaries will be permitted to continue their employment with their current employers for 240 days upon timely filing an extension of stay request. Previously, H-1B1 and E-3 were not among the list of enumerated nonimmigrant categories that permitted the automatic 240 extension upon timely filing; 
• H-1B1 and principal E-3 beneficiaries will be included in the classes of foreign nationals who are authorized for employment in the U.S. incident to status with a specific employer.  This clarifies that H-1B1 and principal E-3 workers are not among the classes of nonimmigrants that must separately apply for employment authorization to begin work with their petitioning employer; and,
• H-1B1 and principal E-3 beneficiaries will be permitted to file for extensions of stay and change of status requests while in the U.S.   Although it has been the case that the Form I-129 instructions permitted H-1B1 and principal E-3 workers to use the form and file for extensions and change of status requests for many years, the existing regulations were not drafted in a way to specifically permit these filings.  

In addition to the changes to the H-1B1 and E-3 categories, DHS’s new rule has also revised the EB-1 regulations for outstanding professors and researchers.  DHS acknowledged the list of evidence that applicants in the EB-1 category may submit to prove their outstanding qualifications was dated and needed to be amended to expressly permit applicants to submit “comparable evidence” to establish their eligibility.  The regulations specifically cite evidence of “important patents or prestigious peer-reviewed funding grants” as two types of comparable evidence applicants may now submit to demonstrate they are recognized internationally as outstanding in their academic areas.

To review a full copy of the new regulations, visit the Federal Register online at https://federalregister.gov/a/2016-00478.  Please contact the attorneys at Iandoli Desai & Cronin P.C. at info@iandoli.com with any questions you may have about the changes coming next month to the H-1B1, E-3, and EB-1 categories.  

DHS Proposes Expansive Rule Addressing Immigrant & Non-immigrant Employment-Based Categories

In the last Federal Register edition of 2015, the Department of Homeland Security ("DHS") proposed substantial revisions and additions to its rules governing employment-based immigrant and non-immigrant categories. Many of the proposed provisions incorporate and clarify statutory provisions enacted by Congress over a decade ago, while others seek to insulate employers and foreign nationals from recent systemic delays in adjudication at USCIS. 

The extensive proposal promises to "provide various benefits to participants in those programs, including: improved processes for U.S. employers seeking to sponsor and retain immigrant and non-immigrant workers, greater stability and job flexibility for such workers, and increased transparency and consistency in the application of agency policy related to affected classifications."  Several of the specific changes sought in the proposed regulations include:

• Enabling certain high-skilled, non-immigrant workers with approved I-140 petitions to apply for separate employment authorization for a limited period if there are compelling circumstances for doing so.  In the proposed regulations DHS does not define "compelling circumstances" but does cite four examples, including significant disruption to the employer, serious illness and disabilities, employer retaliation, or other substantial harm to the applicant;
• Implementing a one-time 60 day grace period for E-1, E-2, E-3, H-1B, L-1 and TN non-immigrants upon cessation of employment (whether the employment ends voluntarily or the foreign national has been laid off or terminated);
• Automatically extending the validity of certain Employment Authorization Documents ("EADs") for up to 180 days upon timely filing applications to renew the existing EADs; and,
• Eliminating the 90 day processing timeframe for EADs and the requirement for the issuance of interim EADs.

Iandoli Desai & Cronin P.C. will keep you informed of any updates and resulting final rules from these proposed regulations in 2016. To view the proposed revisions and submit public comments by February 29, 2016, visit https://federalregister.gov/a/2015-32666.