The Department of Homeland Security (DHS) proposed important changes to the nonimmigrant specialty occupations of H-1B1 for Chile and Singapore nationals and E-3 for Australians which grants continued employment authorization during the pendency of an extension of stay thus providing additional flexibility to these nonimmigrants and their employers. The Notice of Proposed Rulemaking was published in the May 12th Federal Register and opens a comment period for sixty days through July 11th. During this period, DHS will accept any comments and arguments for and against the proposed rule. The Notice of Proposed Rulemaking does not mean that this rule will eventually become law, but only that the DHS is proposing to do so.

In addition to incorporating the H-1B1 and E-3 nonimmigrant categories into the regulations that cover the majority of the nonimmigrant classifications, the proposed rule would allow H-1B1 and E-3 to remain employed for a period of 240 days after expiration of their authorized period of stay as indicated on their Form I-94 while a timely extension of stay has been filed by their employers with the U.S. Citizenship and Immigration Services (USCIS). This automatic extension of employment authorization is already granted to other nonimmigrant classifications, such as E-1, E-2, H-1B, L-1A/B and TN. Currently, employers who sponsor H-1B1 and E-3 nonimmigrants must file the extension of stay with sufficient time to ensure that the USCIS approves the petition prior to the nonimmigrant's expiration date, otherwise, the individual must stop working until a decision has been reached. Since the USCIS' processing times are always fluctuating this situation adds an extra layer of uncertainty and complexity to the hiring of H-1B1 and E-3 employees that employers would appreciate if they could avoid. We welcome the DHS' proactive approach of incorporating the H-1B1 and E-3 categories into the laws that govern the more common visas.