DHS Posts Final Rule to Amend Regulations for H-1B1 and E-3 Nonimmigrant Classifications

On Friday, January 15, 2016, the Department of Homeland Security (DHS) posted to the Federal Register the final rule revising regulations affecting highly skilled workers in the nonimmigrant classifications for specialty occupations from Chile, Singapore (H-1B1), and Australia (E-3), among other nonimmigrant and immigrant categories. The rule is effective February 16, 2016. 

In this rule, DHS revises its regulations related to H-1B1 and E-3 nonimmigrant classifications in the following ways:

1. H-1B1 and principal E-3 classifications will be included in the list of classes of foreign nationals authorized for employment incident to status with a specific employer. This amendment brings the regulations into line with existing policy allowing foreign nationals in H-1B1 and E-3 status to work for the sponsoring employer listed on the petition or visa without having to separately apply for employment authorization.
    
2. Where an employer timely files an extension of stay request on behalf of a foreign national in H-1B1 or principal E-3 status, DHS authorizes employment for up to 240 days past the expiration date listed on the Arrival/Departure Record (I-94). This means that while an employer’s request for extension of stay remains pending, the employee can continue working. Similar to the regulations for H-1B, E-1, and E-2 nonimmigrant classifications, the employee no longer needs the approval notice to continue working past the expiration of the I-94 record so long as the request for extension of stay was filed before the expiration.
    
3. H-1B1 and principal E-3 nonimmigrants may extend or change their status while in the United States. This updated regulation conforms to the filing procedures currently listed on Form I-129, Petition for a Nonimmigrant Worker. 

DHS’s updated regulations remove the unnecessary obstacles for qualifying H-1B1 and principal E-3 nonimmigrant workers to continue working in the United States. The amended regulations give H-1B1 and principal E-3 nonimmigrants the same treatment as other, similarly situated nonimmigrants, such as H-1B, E-1, and E-2 classifications. It also provides uniformity and predictability for US employers and their employees. This final rule seeks to avoid the loss of productivity by the employer and loss of wages by the foreign national employee. 

DHS is amending the regulations to reflect what is already in effect by statute. Employers are able to file an extension of stay request up to 6 months in advance of an I-94 expiration. The new regulations will allow an employee to continue working past the expiration for up to 240 days in the face of unexpected processing delays where the extension of stay request is still pending. As such, the amended rule will minimize the loss of disruption to employment for US employers and their H-1B1 and E-3 nonimmigrant workers.

Please contact your Mintz Levin attorney with any questions on H-1B1 or principal E-3 petitions. 

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