On January 15, 2016, the Department of Homeland Security (DHS) amended its regulations to improve the programs serving the H-1B1, E-3 and CW-1 nonimmigrant classifications and the EB-1 immigrant classification, and remove unnecessary hurdles that place such workers at a disadvantage when compared to similarly situated workers in other visa classifications.

This final rule, effective on Feb. 16, revises regulations affecting highly skilled workers in the nonimmigrant classifications for specialty occupations from Chile, Singapore (H-1B1) and Australia (E-3); the immigrant classification for employment-based first preference (EB-1) outstanding professors and researchers; and nonimmigrant workers in the Commonwealth of the Northern Mariana Islands (CNMI)-Only Transitional Worker (CW-1) classification.

Specifically, this final rule amends DHS regulations as described below:

  • DHS is authorizing continued employment with the same employer for up to 240 days for H-1B1 and principal E-3 nonimmigrants whose status has expired while their employer’s timely filed extension of stay request remains pending.
  • DHS is providing this same continued employment authorization for CW-1 nonimmigrants whose status has expired while their employer’s timely filed Form I-129CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker, request for an extension of stay remains pending.
    • The prior “240 Day Rule” authorized by DHS permits an H-1B nonimmigrant worker to continue to work with same employer for up to 240 days beyond the date of expiration on the visa, so long as an extension of stay has been filed prior to the expiration date (i.e. timely filed).
  • DHS is including H-1B1 and principal E-3 classifications in the list of classes of foreign nationals authorized for employment incident to status with a specific employer. This means that H-1B1 and principal E-3 nonimmigrants are allowed to work for the sponsoring employer without having to separately apply for employment authorization.
  • Existing regulations on the filing procedures for extensions of stay and change of status requests now include principal E-3 and H-1B1 nonimmigrant classifications.
  • Employers petitioning for EB-1 outstanding professors and researchers may now submit initial evidence comparable to the other forms of evidence already listed in 8 CFR 204.5(i)(3)(i), much like certain employment-based immigrant categories that already allow for submission of comparable evidence.

As a result of this regulatory change, employers will be able to reverify affected workers on Form I-9 without the need to wait for an approval of the extension petition.

What is the effective date of the new rule?

The amended regulation took effect on February 16, 2016.

What has changed, and who is affected?

The regulations were amended to add H-1B1 and principal E-3 nonimmigrants to the list of “aliens authorized for employment with a specific employer incident to status” and 8 CFR §274a.12(b)(20) was amended to add H-1B1, E-3, and CW-1 to the list of nonimmigrant visa classifications that are eligible for an automatic 240-day extension of employment authorization where the nonimmigrant’s period of authorized stay has expired but where a timely application for an extension of stay has been filed. Prior to this change, the regulation only applied to A-3, E-1, E-2, G-5, H-1B, H-2A, H-2B, H-3, I, J-1, L-1, O-1, O-2, P-1, P-2, P-3, R-1, and TN nonimmigrants.

Does this change apply to petitions pending on February 16, 2016, or only to new filings on or after that date?

Neither the preamble nor the text of the final rule provide guidance as to whether the 240-day extension applies to E-3, H-1B1, or CW-1 extension petitions filed prior to February 16, 2016 but remain pending on the effective date.

How should an employer annotate and reverify Form I-9 for an H-1B1, E-3, or CW-1 employee who wishes to rely on the 240-day extension rule?

On February 23, 2016, USCIS posted the following guidance on the I-9 Central homepage:

If an employer has timely filed an extension of stay for its H-1B1, E-3 or CW-1 nonimmigrant employee, the employer should write “240-Day Ext” and the date the employer submitted the Form I-129, Petition for a Nonimmigrant Worker, or Form I-129CW petition to USCIS in Section 2.  The employer must reverify the employee’s employment authorization in Section 3 once a decision is received on the request for an extension of stay or by the end of the 240-day period, whichever comes first.

This is consistent with general guidance on the 240-day rule contained in the April 30, 2013, version of the M-274 Handbook for Employers. The M-274 further advises employers to retain proof of timely filing of the extension with USCIS. This includes a copy of the I-129, proof of payment, proof of mailing, and/or the receipt notice from USCIS. Once the extension is approved, the employer should “Enter the document title, number and expiration date listed on the notice in Section 3 of Form I-9.”

This final rule does not impose any additional costs on employers, workers or any governmental entity. Further, changing the employment authorization regulations for H-1B1 and E-3 nonimmigrants makes them consistent with other similarly situated nonimmigrant worker classifications and minimizes the potential of employment disruptions for U.S. employers of H-1B1, E-3 and CW-1 nonimmigrant workers. Additionally, DHS expects that this change will help U.S. employers recruit EB-1 outstanding professors and researchers by expanding the range of evidence that U.S. employers may provide to support their petitions. DHS states “Attracting and retaining highly skilled workers is critical to sustaining our Nation’s global competitiveness.  By attracting the best and brightest from around the world, the United States can harness their talents, skills, and ideas to help the U.S. economy grow.”

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.