DHS Eases Employment Authorization and Extension Rules for Highly Skilled Workers

The Department of Homeland Security (DHS) issued new regulations that go into effect February 16, 2016 for H-1B1, principal E-3, and CW-1 workers. (The E-3 visa is for the employee, i.e. “principal,” and family members, but the new regulation applies only to the principal E-3.) H-1B1 and principal E-3 workers often are referred to as “highly skilled workers,” because the requirements for these visas closely track the H-1B “specialty occupation” visa reserved for professionals who have a university degree or comparable work experience related to their job. The CW-1 visa is for certain persons working in the Commonwealth of the Northern Mariana Islands.

There are three updates in the new regulation. The first is to include the H-1B1, E-3, and CW-1 visa categories among the other visa categories, including E-1, E-2, H-1B, L-1, and others, for which an employer may submit a petition to DHS in the United States to extend the stay and work authorization of the employee. The regulation concerning extensions previously did not include these three visa categories.

Second, an update to the employment authorization verification regulations, often referred to as “I-9 rules,” includes H-1B1 and principal E-3 among the categories of temporary, or “nonimmigrant,” workers who are authorized to work for a specific employer “incident to status.” This means that upon arrival in the U.S. with an H-1B1 or principal E-3 visa, the Customs and Border Protection officer will grant them H-1B1 or E-3 “status” that authorizes them to work for the employer that sponsored the visa. Such workers do not need to apply for any separate authorization to work for that employer.

Finally, and perhaps most significantly, another revision to the I-9 rules provides for a 240-day extension of work authorization for H-1B1, principal E-3, and CW-1 workers whose employers filed a petition to extend their stay before it expired. The 240-day extension already applies to other temporary visa categories, and the change therefore includes these three visa categories as well.

This is an important change for employers, because there often is not enough time to obtain approval of the extension before the worker’s work authorization expires. The H-1B1, E-3, and CW-1 visa categories are not eligible for Premium Processing, which provides for 15-day processing. Therefore, without this amendment, H-1B1, E-3, and CW-1 workers either needed to travel abroad to renew their visas or stop working until they again had work authorization.

The first two changes do not change current practice. The third change, however, is a much-needed revision that brings the H-1B1, E-3, and CW-1 visa categories in line with other temporary visa categories. It will benefit employers and employees alike.