Search 240 day rule

On January 13, 2016, the Department of Homeland Security (“DHS”) released an advance copy of an updated rule providing additional flexibility and enhanced opportunities for certain highly skilled workers. It covers workers who are in the U.S. in H-1B1 (from Chile and Singapore), E-3 (from Australia), temporary workers in the Commonwealth of the Northern Mariana Islands (CNMI)-Only Transition Worker (CW-1), and immigrant classification for outstanding professors and researchers (EB-1).

Current regulation (8 CFR § 2741.12(b)(20)) allows other high skilled workers in the following nonimmigrant visa categories to continue to work for up to 240 days beyond their current expiration date as long as they file a timely extension request before the expiration date:

  • H-1B specialty occupation workers,
  • L-1 intracompany/multinational corporation transferees,
  • O-1 extraordinary ability aliens,
  • E-1/E-2 treaty traders and investors,
  • TN NAFTA professionals, and
  • Certain international organizational workers and so on.

Because the nonimmigrant visa categories of H-1B1 and E-3 were created after the prior regulation was published, visa holders in these categories have not been able to continue to work unless they submitted their extension requests early or paid an additional $1,225 USCIS premium processing fee for expedited services.

Additionally, DHS added in its regulation allowing immigrant visa (“green card”) applicants to include important patents or prestigious peer-reviewed funding grants as evidence to establish their eligibility as an internationally recognized outstanding professor or researcher in their specialized academic field. Under 8 CFR 204.5(i)(3)(i), USCIS would accept an applicant’s claim to have met the statutory requirement for having satisfied two of the six criteria, such as receipt of major prizes or awards, original authorship of scholarly articles, serving as a judge of the work of others. Although important patents or prestigious peer-reviewed funding grants previously could be used to support the international recognition criterion for final merits review by USCIS, DHS has now codified this as threshold eligibility evidence to meet the statutory requirement.

The final rule is scheduled to be published in the Federal Register on January 15, 2016 with an effective date of February 16, 2016.

UPDATE:

On March 28, 2013, DOL suspended issuance of H-2B Prevailing Wage Determinations due to the Court’s decision on the 2008 wage rule.

http://www.foreignlaborcert.doleta.gov/news.cfm

Further, effective March 22, 2013 U.S. Citizenship and Immigration Services (USCIS) temporarily suspended adjudication of most Form I-129 H-2B petitions for temporary non-agricultural workerswhile the government considers appropriate action in response to the Court’s decision on the wage rule.

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In a four-year battle over the Department of Labor’s rule regarding the methodology for setting H-2B prevailing wage rates, a federal district court has vacated the 2008 H-2B Wage Rule, granting permanent injunctive relief and remanding the case to the DOL.  The court gave the DOL 30 days to comply.  Comite de Apoyo a los Trabajadores Agricolas v. Solis, No. 09-240 (E.D. Penn. Mar. 21, 2013).  The court answered “yes” to the question: “Whether the DOL’s continued use of the 2008 Wage Rule—which has been found procedurally invalid by this Court and substantively invalid by the DOL—justifies vacating the Rule and barring the Rule’s continued use.”

Before requesting H-2B non-agricultural temporary worker classification from the U.S. Citizenship and Immigration Services (USCIS), the employer must apply for and receive a temporary labor certification from DOL that, among other things, certifies that the H-2B workers would be paid at least the prevailing wage assessed by DOL. Over the past three decades, the DOL has periodically changed its methodology for calculating prevailing wages, without notice and comment, and often without explanation. The 2008 Wage Rule introduced the “arithmetic mean.” It states: “the prevailing wage for labor certification purposes shall be the arithmetic mean . . . of the wages of workers similarly employed at the skill level in the area of intended employment.”  The DOL divides each unskilled, H-2B occupation into four separate skill levels and calculates a prevailing wage for each level.

The 2008 H-2B wage methodology rule was promulgated without seeking public comment during the rulemaking process.  A federal district court, on August 30, 2010, ruled the 2008 Rule violated the Administrative Procedure Act (APA) and ordered the DOL to promulgate new, APA-compliant rules for calculating the prevailing wage rates.  Even though DOL published a new final H-2B Wage Rule on January 19, 2011, its implementation has been held up due to delays by Congressional “appropriations concerns” denying DOL funding.

The court found that H-2B labor certifications issued under the 2008 Wage Rule exceeded the authority delegated to the DOL.  The Rule “…artificially lower wages to a point that they no longer represent market-based wages for the occupation” and “have a depressive effect on the wages of United States workers,” according to the court.  Consequently, the Court concluded that labor certifications issued under the 2008 Wage Rule fall “directly outside the narrow range of circumstances under which the DOL is authorized to issue labor certifications and exceeds the bounds of the DOL’s delegated authority under Section 706(2)(C) of the APA.”

For more information on H-2B visas, H-2B labor certification applications, DOL H-2B audits or investigations, please contact your Jackson Lewis attorney or any member of the Jackson Lewis Immigration Practice.

Links:
http://dl.dropbox.com/u/27924754/CATA%20168%203-21-13.pdf

To help employers dealing with labor shortages due to the limits on H-2B temporary, seasonal visas, a new rule published by the Department of Labor (DOL) increases the H-2B numerical limits. DOL also released a rule that allows H-2B nonimmigrant workers already in the United States to begin work immediately with a new employer after an H-2B petition has been filed if it is supported by a valid Temporary Labor Certification (TLC) received by USCIS even if it is not yet approved.

The new rules do not apply to employees who are continuing to work with the same employer. Those employees are not “portable,” instead they are entitled to keep working for up to an additional 240 days if the extension of stay was timely filed.

Portability for workers changing employers applies if:

  • The H-2B extension was received before May 25 and is pending on May 25, 2021; or
  • USCIS receives the H-2B petition between May 25 and November 22, 2021.

First, the new employee may be employed for up to 60 days beginning on the employment start date of the petition or May 25, 2021, whichever is later.

Second, the 60-day period begins on the Received Date of the Form I-797, Notice of Action, acknowledging receipt of the petition or the employment start date, if later than the receipt date.

Completing a Form I-9, Employment Eligibility Verification, for H-2B portability requires:

  • An unexpired Form I-94, Arrival/Departure Record indicating H-2B status and the employee’s foreign passport constitute a List A Document
  • In Section 2, List A enter:
    • Unexpired foreign passport information
    • Unexpired Form I-94 information
    • Enter “60-Day Ext.” and the date extension of stay petition was submitted to USCIS in the Additional Information field
  • Employment authorization must be reverified in Section 3 by the end of the 60-day period or when a decision is received from the USCIS, whichever is sooner.

If USCIS denies the petition or the new petition is withdrawn by the employer before the 60-day period expires, USCIS will automatically terminate the worker’s employment authorization 15 calendar days after the denial or the withdrawal.

Although the new allotment of H-2Bs have been snatched up, there are still some H-2B visas available for employees from the Northern Triangle countries. If those are not all allotted by July 8, 2021, the remaining visas will be released by the end of July.

If you have questions about the I-9 process for H-2B workers, please reach out to your Jackson Lewis attorneys. We will continue to provide updates as they become available.

For more information on H-2B petitions, see the new H-2B Employer Data Hub.

In a surprising and welcome development to U.S. employers, USCIS today announced that employers filing E-3 visa petitions on behalf of Australian nationals will have the option of requesting premium processing when requesting a change or extension of status to E-3.

The E-3 visa for Australian professionals became law in 2005. Currently a maximum of 10,500 are available each year, but, unlike the H-1B cap, the E-3 limit has never been reached. This makes it an attractive visa alternative for Australians, especially when H-1Bs are not available.

E-3 visas allow Australian nationals to enter the United States to perform work in a specialty occupation, as long as the beneficiary has a bachelor’s degree or its equivalent in the relevant field. The supporting documentation must include, among other things, a Labor Condition Application like those required for H-1Bs.

The E-3, like the TN visa for Canadians and Mexicans, is known as a “fast track” visa because an individual may apply for an E-3 directly at a Consulate abroad – without filing a Form I-129 with USCIS. But in these days of COVID-19, applying at a Consulate abroad may not be practical when the new hire is already in the United States. So, having the ability to premium process a case likely will come in handy even with the additional USCIS filing fees – including the $2,500 premium processing fee.

This premium processing announcement is the second step USCIS has taken to make E-3 visas more equivalent to other nonimmigrant visas. The first step was in 2016, when USCIS clarified that E-3 nonimmigrants (like other nonimmigrants) have up to 240 days of continued automatic employment authorization with the same employer beyond their current expiration date if the employer timely files an extension of stay request.

Last October, in a Continuing Resolution, Congress announced that new visa benefit types would become eligible for premium processing. The new benefit types included EB-1 petitions for multinational executives and managers, EB-2 petitions for those seeking national interest waivers, applications to change nonimmigrant status to F, J, or M, applications to change or extend status as the dependent of an E, H, L, O, P, or R visa holder, and applications for employment authorization. These are not yet in effect and will not go into effect until USCIS issues regulations setting out the specific fees and adjudication times. The E-3 visa was not included in that list, but perhaps the extension of premium processing to E-3 visas will lead to more announcements.

Jackson Lewis attorneys will provide updates and are available to assist with any questions about E-3 applications for Australians.

On September 15, 2020, Judge Amit P. Mehta filed an amended order in Gomez v. Trump in response to the Department of State’s (DOS) guidance regarding the processing of Diversity Visa applications. DOS had announced that it would not issue visas to applicants who were subject to the “14-Day Quarantine” rule if they were not exempt or had not completed a 14-day quarantine elsewhere. Judge Mehta found this was “illogical” and “at odds with” his previously issued injunction. DOS has yet to respond.

Jackson Lewis attorneys will monitor further developments and provide updates accordingly.

On July 17, 2017, the USCIS announced the release of a revised version of Form I-9, Employment Eligibility Verification.

  • The revised version may be used immediately but it must be used no later than September 18, 2017.
  • Employers can continue using Form I-9 with a revision date of 11/14/16 N through September 17, 2017.
  • Employers must continue following existing storage and retention rules for any previously completed Form I-9.

The changes noted below also can be found in the newly revised Handbook for Employers: Guidance for Completing Form I-9 (M-274).

Revisions to the Form I-9 instructions:

  • The name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) has been changed. Its new name is Immigrant and Employee Rights Section (IER).
  • The instructions on Section 2 have been slightly changed to read: “Employers or their authorized representative must complete and sign Section 2 within 3 business days of the employee’s first day of employment.”

 

Revisions related to the List of Acceptable Documents on Form I-9:

  • The Consular Report of Birth Abroad (Form FS-240) was added as a List C document and all the certifications of report of birth issued by the Department of State (Form FS-545, Form DS-1350, and Form FS-240) have been combined.
  • The List C documents have been renumbered, except for the Social Security card, which remains #1 on the list.

 

If you have any questions about the new form, please contact your Jackson Lewis attorney for assistance.