The Department of Homeland Security (DHS) published Enhancing Opportunities for H-1B1, CW-1, and E-3 Nonimmigrants and EB-1 Immigrants in the Federal Register, a final rule first proposed in May 2014. The amended immigration regulations for H-1B and other visas seek to “improve the programs […] and remove unnecessary hurdles that place such workers at a disadvantage when compared to similarly situated workers in other visa classifications.” The rule, established with input from the public, is effective Feb. 16, 2016.
Here are the major amendments:
240-day visa extension
The H-1B Person in Specialty Occupation, L-1 Intracompany Transferee and TN North American Free Trade Professionals visa holders are automatically granted a 240-day extension if their employer submitted a renewal application before the expiration date, yet the petition hasn’t been approved due to processing delays. The DHS is now extending that same rule to the H-1B1 Free Trade Agreement Professional from Chile or Singapore, E-3 Certain Specialty Occupation Professional from Australia and CW-1 Commonwealth of the Northern Mariana Islands Only Transitional Worker visa classifications.
“An employer could file several months in advance, but with long and unpredictable processing times, an employee in H-1B1 or E-3 would have to stop working because they didn’t get an approval,” says Envoy-affiliated attorney Earl Reyes. “Employers should still plan on filing their H-1B1 and E-3 extension petitions two to three months in advance, but they can continue working up to 240 days past their current expiration date while the extension is pending.”
For employers looking for another method to speed up the visa renewal process, Reyes offers a tip: “It is always faster, yet more expensive, to go to the U.S. Consulate to obtain extensions — and this is still an open option. However, this points out an unfortunate item that has not been added to these new rules. You still cannot file these types of visas with premium processing [an add-on feature that processes applications within 15 calendar days].”
‘Comparable evidence’ option
Right now, when providing supporting evidence during the visa application process, only select petitioners are permitted to use forms of documentation not technically included in the acceptable documents list. The exception is known as “comparable evidence.” In this final rule, DHS extended this option to professors and researchers petitioning for green cards under the EB-1 Priority Worker classification.
“This rule grants more flexibility to foreign nationals to demonstrate they are internationally recognized in their field with comparable documents such as patents and receipt of competitive grants,” Reyes says.
Many people who’ve commented on the rule felt that expanding the comparable evidence list allows a greater number of skilled professionals and scholars to conduct research and contribute to the U.S. economy.
Work authorization form eliminations
DHS has also removed the regulations for H-1B and E-3 holders that require a separate work authorization petition on top of their general work visa application. This elimination creates a faster petition process. Additionally, according to the DHS, the rule is more in line with other visa classifications and allows for greater consistency between what’s actually practiced and current laws.
The final rule on regulations for H-1B and other visas can be found in its entirety on the Federal Register.
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