DHS Rule-making and Policy Updates

Court Grants Motion Allowing STEM OPT Extensions through May 10, 2016; DHS Issues Final Rule Benefiting H-1B1 and E-3 Workers, and Outstanding Researchers; and DOS & DHS Implement Congressionally-Mandated Restrictions to Visa Waiver Program

Court Grants DHS’ Motion to Extend Stay Invalidating STEM OPT Extensions by 90 Days

As previously reported, on December 22, 2015, the Department of Homeland Security (“DHS”) requested that the federal court in Washington Alliance of Technology Workers v. DHS (“Washtech”) postpone the date on which the 2008 Rule authorizing STEM OPT extensions will be invalidated. The purpose of the request was to allow DHS sufficient time to complete the administrative rulemaking process and reinstate the STEM OPT extension program through a new rule, thereby avoiding a regulatory gap. On January 23, 2016, the Washtech court granted DHS’ motion for limited relief, and ordered that its earlier decision to vacate the 2008 Rule as of February 12, 2016 be pushed out to May 10, 2016. The court found that in light of the “unexpected and unprecedented" 50,500 public comments received by DHS in response to the agency’s Notice of Proposed Rulemaking on October 19, 2015, "extraordinary circumstances" existed that warranted modifying the previous order pursuant to Rule 60(b)(6). The court found that the underlying factors that warranted the original six-month stay of its August 12, 2015 decision—undue hardship to STEM OPT participants and U.S. employers—remain unchanged. In its decision, the court reiterated that the significance of that hardship could not be overstated: “According to DHS, there are approximately 23,000 STEM OPT participants; 2,300 dependents of STEM OPT participants; 8,000 pending applications for STEM OPT extensions; and 434,000 foreign students who might be eligible to apply for STEM OPT authorizations....If the stay is not extended, many of these people would be adversely affected, either by losing their existing work authorization, not being able to apply for the OPT extension, or not knowing whether they will be able to benefit from the extension in the future. And of course, the U.S. tech sector will lose employees, and U.S. educational institutions could conceivably become less attractive to foreign students.” This 90-day postponement will allow the previous 2008 Rule to remain in effect through May 10, 2016 and allow eligible F-1 students to continue to submit applications for STEM OPT extensions through this date. The postponement should also allow DHS sufficient time to review the public comments submitted in response to the newly proposed rule and complete the rule-making process.

DHS Issues Final Rule on Enhancing Opportunities for H-1B1 and E-3 Workers and EB-1 Outstanding Professor & Researcher Immigrants

DHS posted a final rule to the Federal Register on January 15, 2016 revising its regulations affecting nonimmigrant workers in specialty occupations from Chile and Singapore (H-1B1) and Australia (E-3) and the employment-based (EB-1) immigrant classification for outstanding professors and researchers. The new rule also makes changes to the nonimmigrant classification for the Commonwealth of the Northern Mariana Islands (CNMI) Only Transitional Worker (CW-1) classification. The new rule will take effect on February 16, 2016. The new rule brings filing procedures for H-1B1 and E-3 nonimmigrant workers in line with all other employment-based nonimmigrant visa classifications. Most importantly, the new rule permits H-1B1 and E-3 nonimmigrant workers to remain authorized for employment with the same employer for up to 240 days beyond the expiration of the worker’s period of authorized stay, so long as a timely-filed extension remains pending on the worker’s behalf. This “240-day rule” currently applies to other employment-based nonimmigrant visa classifications such as the H-1B, TN and O-1 classifications. Because the H-1B1 and E-3 nonimmigrant classifications were statutorily created after the promulgation of the existing regulations, these classifications were not included. As a result, where the adjudication of an H-1B1 or E-3 extension is not completed prior to the end date of the nonimmigrant worker’s period of authorized stay, the worker is currently required to stop working and immediately depart the United States. This can be disruptive to employers and employees alike, especially given the increasingly lengthy processing times for nonimmigrant extensions filed with the U.S. Citizenship and Immigration Services (“USCIS”). For example, an employer could file an extension on behalf of an E-3 worker six months in advance of the worker’s I-94 expiration date. Nevertheless, due to USCIS processing backlogs, or the issuance of a Request for Evidence, the extension could remain pending at the time the worker’s I-94 expires, requiring the worker to immediately go off payroll and depart the United States. Under the new rule, such workers would remain authorized to continue employment for the employer for up to 240 days following the I-94 expiration, so long as an extension is timely filed on the worker’s behalf. Notably, the new rule does not permit H-1B1 or E-3 nonimmigrant petitions to be filed through the Premium Processing (expedited) queue. The new rule also allows employers filing EB-1 immigrant petitions on behalf of Outstanding Professors and Researchers to submit initial evidence that is comparable to the other forms of evidence already listed in 8 CFR 204.5(i)(3)(i), as is currently the case with the Alien of Extraordinary Ability immigrant visa category. Existing regulations for Outstanding Professor and Researcher petitions do not fully encompass other types of evidence that may be comparable, such as evidence of patents of prestigious peer-reviewed funding grants. This is a significant change that accommodates modern business practice which has evolved since the regulations were published over 20 years ago. By expanding the range and evidence that employers may submit in support of these petitions, the Outstanding Research category should be more flexible, and useful to a broader range of foreign workers.

U.S. Customs and Border Protection & U.S. Department of State Address Implementation of New Restrictions on Visa Waiver Program

On January 21, 2016, the United States began implementation of the recent amendments to the Visa Waiver Program (“VWP”) which were passed as part of the Omnibus Appropriations Bill of 2016. The Congressionally-mandated changes now require citizens of participating Visa Waiver countries who have traveled to Iraq, Syria, Iran or Sudan since March 1, 2011, as well as citizens of participating Visa Waiver countries who hold dual citizenship with Syria, Iraq, Iran, or Sudan, to obtain visas prior to entering the U.S. Such individuals are no longer eligible to obtain approval to travel to the U.S. through the Electronic System for Travel Authorization (“ESTA”) portal. Travelers who currently have valid ESTAs and who have previously indicated holding dual nationality with one of the above-listed countries on their ESTA applications will have their current ESTAs revoked as of January 21, 2016. Travelers who have their ESTAs revoked will be contacted via the email address they provided as part of the ESTA application. U.S. Customs and Border Protection (“CBP”) recommends that any traveler check his/her ESTA approval prior to making any travel reservations to the United States. An updated ESTA application with additional questions is scheduled to be released in late February 2016. Affected individuals will need to apply for a visa using the regular application process at U.S. embassies and consulates. The U.S. Department of State (“DOS”) has indicated that U.S. embassies and consulates are prepared to provide additional staff if visa application volumes at embassies and consulates increase, and to process applications on an expedited basis for those who need a U.S. visa for urgent business, medical or humanitarian travel. The Secretary of Homeland Security may waive the VWP restrictions if he determines that such a waiver is in the law enforcement or national security interests of the United States. Such individuals may include those who have traveled to the above-listed countries on official duty on behalf of international or regional organizations, subnational governments, or humanitarian NGOs, as well as journalist for reporting purposes, etc. Such waivers will only be granted on a case-by-case basis. DHS and DOS will continue to explore whether and how the waivers can be used for dual nationals of Iran, Iraq, Sudan and Syria. As a reminder, Canadian citizens are visa exempt and are not participants in the Visa Waiver Program. Thus, the new restrictions do not apply to Canadian citizens who have dual nationality in one of the prohibited countries. Employers planning to invite candidates or colleagues from abroad to the United States for interviews and/or business meetings should plan well in advance to ensure that the foreign national remains eligible for travel under ESTA, or apply for the necessary nonimmigrant visa well in advance of the intended meeting dates. Please contact our office if any such foreign national’s ESTA is denied or revoked, and/or requires assistance in applying for a visa for travel to the United States.

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