Proposed DHS Regulations for E-3 and H1B1 Nonimmigrants

The U.S. Department of Homeland Security (DHS) issued a proposed regulatory change related to the country-specific specialty occupation professionals categories, E-3 (for Australians) and H1B1 (for citizens of Chile and Singapore). These changes would provide some clarification regarding the work authorized nature of these categories.

Immigration Benefits for Nationals of Australia, Chile, and Singapore

The E-3 category is available only to Australian citizens, while the H1B1 is reserved for nationals of Chile and Singapore. The E-3 and the H1B1 are very similar to the H1B category, in that they can only be used for employment with a U.S. company in a specialty occupation. These categories are based on treaties between these countries and the United States.

Work Authorization Incident to Status Versus Need for EAD

Federal regulations list certain classes on nonimmigrant workers that are eligible to work in the United States incident to status, or automatically based upon the foreign national’s status in this country. For instance, a person who enters the U.S. in H1B status is automatically permitted to work for the sponsoring employer upon admission. Conversely, other classes of nonimmigrants, such as an F-1 student seeking to engage in optional practical training (OPT), must first obtain an employment authorization document (EAD) before being permitted to commence employment.

Proposal Would Clarify Automatic Work Authorization

E-3 and H1B1 workers are considered to be authorized to work for a sponsoring employer incident to status. However, this is not specified in the regulations. This proposal is intended to formalize the automatic work authorization for E-3 and H1B1 workers upon admission to the United States.

E-3s & H1B1s Would Remain Work Authorized Upon Timely Filed Extension

The DHS proposal would also clarify that H1B1 and E-3 workers would remain authorized to work for the sponsoring employer for up to 240 days while a petition to extend status is pending. The regulations already grant this immigration benefit to a number of other classes of nonimmigrant workers. The current regulations, however, were enacted prior to the creation of the H1B1 and E-3 categories. This proposal would update the regulations to reflect that these two classes of workers are also entitled to this benefit.

Proposed Changes Open to Public Comments

The changes are, as of this writing, only in the proposal stage. There is a sixty-day comment period, which ends July 11, 2014. Those interested in submitting comments may do so by following the instructions provided on the DHS website. Once the comment period ends, the rules would have to be finalized by the DHS before taking effect.

Conclusion

These proposed changes should help to clarify a bit of ambiguity in the current body of regulations related to H1B1 and E-3 workers. The Murthy Law Firm will post updates as more information becomes available.

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