On May 12, 2014, US Citizenship and Immigration Services (USCIS)
published two notices of proposed rulemaking in the Federal
Register. The public is able to comment on the proposed rules
during the 60-day comment period. The proposed changes include a
provision to allow spouses of certain H-1B employees to
work, add formal recognition of the E-3 and H-1B1 visa
classifications, and add a "general" category of
documentation of evidence for outstanding professors or researchers
Employment Authorization for Spouses of Certain H-1B
The proposal would amend current regulations to grant spouses of
H-1B workers (H-4 visa holders) the right to apply for an
Employment Authorization Document (which affords a blanket
authorization to work in the US) as long as the spouse holding H-1B
visa status is the beneficiary of an approved I-140 Immigrant Visa
Petition or has filed for an extension of H-1B visa status on the
basis of an approved I-140 petition, pursuant to sections 106(a)
and/or (b) of the American Competitiveness in the 21st Century
Department of Justice Appropriations Authorization Act
Recognizing E-3 and H-1B1 Temporary Work Visa Classifications
in the Regulations
Another proposed rule change seeks to amend the regulations to
clarify certain conditions of employment and benefits that pertain
to persons holding E-3 and H-1B1 temporary work visa status. E-3
visas are available to Australian citizens who will work in
temporary professional-level positions in the US, and H-1B1 visas
are available to Chilean and Singaporean citizens who will work in
temporary professional-level positions in the US.
The proposal would amend the regulations to clarify that people
holding these visa classifications may work in the US upon entry
into the US with these specific visa types, and also that once the
visa holders have entered the US to work, their employers may file
extension petitions for them, and benefit from the 240 day rule
that applies to other temporary work visa classifications. The
"240 day rule" authorizes continued employment
authorization for up to 240 days beyond the current work
authorization expiration date, so long as the sponsoring employer
timely files an extension of stay petition on behalf of an employee
holding a temporary work visa status.
Applicants for Outstanding Professor or Researcher Immigrant
("Green Card") Petitions
The final proposed change relates to the "Extraordinary
Ability" immigrant visa petition. The proposal seeks to
harmonize the Outstanding Researcher or Professor regulations with
the Extraordinary Ability regulations by adding a
"catch-all" category to the list of allowed criteria.
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With no relief in sight for an increase in the limited number of H-1B spots that will be available in Fiscal Year 2016 nor likely implementation of other possible measures to improve the immigration system by April 1, 2015, are you ready for H-1B Cap Season?
Employers of foreign nationals should note that registration for the Fiscal Year 2015 Diversity Visa ("DV") Lottery opened yesterday, October 1, 2013, at noon (EDT) and will remain open until noon (EDT) on Saturday, November 2, 2013.