E-3, H-1B1 and CW-1 Nonimmigrants Now Eligible for “240-Day” Rule
On January 13, 2016, the U.S. Citizenship and Immigration Services (USCIS) announced that it has amended its regulations to provide relief for nonimmigrants in H-1B1 (specialty occupations from Chile, Singapore), E-3 (specialty occupations from Australia) and CW-1 (transitional workers in the Commonwealth of the Northern Mariana Islands) visa classifications, who file an extension of status in a timely manner. This is great news!!
Current regulations provide most nonimmigrant visa classifications (H-1B, L-1, O-1, TN, etc.), with an automatic 240 days of continued work authorization when an extension petition is filed before the nonimmigrant visa expires. This means that as long as the extension with the same employer is “timely filed” and pending, the nonimmigrant employee may continue to work for his or her employer after the current status expires, for up to 240 days or the date of denial, whichever is earlier. Unfortunately, this “240-day” rule did not apply to H-1B1, E-3 and CW-1 categories until now. Before this amendment, extensions for nonimmigrants in these classifications had to be approved before the expiration date in order to continue working. This often created hardship for employers and foreign nationals as USCIS often takes 3-5 months to adjudicate extension petitions. In the past, employers had to take foreign nationals off payroll. Unfortunately, there is still no option to use the premium processing service in these categories.
New Law Increases H-1B and L-1 Petition Fees
On January 12, 2016, USCIS also announced that there will be an increase in filing fees for certain employers filing H-1B and L-1 visa petitions in accordance with the Consolidated Appropriation Act, 2016, signed by the President on December 18, 2015. Below is an outline of this new requirement.
- Type of petitioners: Employers who employ 50 or more employees in the United States and with more than 50% of those employees are in H-1B or L-1 nonimmigrant status
- Nonimmigrant Visa (NIV) classification: H-1B or L-1A or L-1B
- Type of petition: Initial petition by the employer (change of status, consular processing, and change of employer)
- Required fee: $4,000 for H-1B petitions and $4,500 for L-1 petitions
- When to submit: At the time of filing (For those cases filed, between December 18, 2015 and February 11, 2016, that do not include the required fees, USCIS will issue a Request for Evidencd (RFE) to determine whether the additional fee applies to the petition. USCIS advises that petitioners should wait to respond to the RFE before sending in the additional fee or an explanation of why the new fee does not apply.)
- Effective date: December 18, 2015 through September 30, 2025. (This new rule applies to petitions filed or postmarked on or after December 18, 2015.)
Visa Waiver Updates
In addition, the new law also includes provisions that add certain restrictions to the Visa Waiver Program (VWP). Among other things, the foreign traveler must:
- have an electronic passport as of April 1, 2016
- not have traveled to Iran, Iraq, Sudan or Syria or other other country designated to have been supporting acts of terrorism
- not be a National of Iran, Iraq, Sudan or Syria or any other country designated to have been supporting acts of terrorism (even if a National of another VWP country)
VWP travelers who have traveled to Iran, Iraq, Sudan or Syria or other countries designated to have supported acts of terrorism will have to apply for a traditional B-1/B-2 visitor visa at a U.S. embassy abroad.
EB-1 Outstanding Professors / Researchers Update
In the same January 15, 2016 revised regulation, employers filing Outstanding Professor or Researcher petitions in the EB-1 category may now submit “comparable evidence in petitions and are not limited to the specific criteria.