The Department of Homeland Security (DHS) has recently revised its regulations to state two new rules: (1) E-3 Australian workers and H-1B1 workers from Chile and Singapore can work for up to 240 days for their current employers while their extension petitions are pending, if their employers timely file the extension petitions, and (2) EB-1 outstanding professor and researcher greencard applicants have more flexibility in the types of evidence they can submit to show their qualifications. These new rules are effective February 16, 2016.
Currently, H-1B employees can work up to 240 days for their employers while their H-1B extension are pending, as long as the extension application was filed before the expiration of the current H-1B status. Now, as of February 16, 2016, E-3 and H-1B1 employees will enjoy the same benefit. E-3’s are essentially professional work visas for Australian citizens, and H-1B1’s are professional work visas for citizens of Chile and Singapore. Until now, E-3’s and H-1B1’s had to wait until their extension applications were approved to continue working for their employers. Sometimes, even if the applications were filed months ahead of time, there would be unexpected delays in processing, causing the employee’s status to expire while the extension application was still pending. This results in a gap in the employee’s work authorization, and employers would have to cease employing these individuals until their extension applications were approved. This burdened employers with disruptions in productivity, and hurt employees with loss of pay and legal status to stay in the US. This new rule aims to minimize disruption to employers and promote economic growth by allowing these employees to continue working while their extension applications are pending.
The new rule also aims to assist colleges, universities and other employers to be able to recruit and continuously employ highly skilled professors and researchers. Currently, the EB-1 greencard category for outstanding professors and researchers has a restrictive list of criteria that applicants must use to show that that they have accomplished enough to qualify for the greencard (ex: scholarly articles in prestigious journals with international circulation; major, national or international awards for outstanding achievement; critical, published material about his/her work in a professional journal). If the applicant cannot not supply sufficient material from these inflexible categories of evidence, s/he would not qualify for the greencard. The new rule expands the types of criteria that can be used so that other “comparable evidence” can also be used. This is purposefully vague in definition to allow applicants to be able use whatever high caliber qualifications are relevant to them in their respective fields of expertise. For example, professors and researchers in STEM fields (Science, Technology, Engineering & Mathematics) will now have the flexibility to use funding grants and patents as proof of their outstanding qualifications. This will help US employers to attract and retain highly skilled and accomplished researchers to develop products, which in turn can be sold and help economic growth. It is designed to benefit the US by enhancing research, innovation, and development.
If you have any questions about this e-alert, please contact Berin S. Romagnolo.
This Alert is provided for information purposes only, and does not constitute legal advice. According to Mass. SJC Rule 3:07, this material may be considered advertising. ©2016 Posternak Blankstein & Lund LLP. All rights reserved.
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