US Employers: Hiring an Australian National for Your Project? Good News for E-3 visa holders.

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Under the E-3 visa category, a foreign national must be able to show he or she will be employed in a specialty occupation in the U.S. and he or she possess the required U.S. bachelor’s or higher degree (or its equivalent) in the specific specialty to meet the minimum requirement for entry into the occupation in the United States.  10,500 are issued per fiscal year for initial petitions.  Similar to the H-1B classification, this particular visa applies to those who are a national of the Commonwealth of Australia. A labor attestation must also be filed.

On January 15, 2016, USCIS published a final rule amending 8 CFR §274a.12(b)(20) to authorize continued employment for up to 240 days for  H-1B1 (Chile, Singapore), E-3 (Australia) and CW-1 (Commonwealth of the Northern Mariana Islands) nonimmigrants whose status has expired, provided that the employer timely filed an extension of stay with U.S. Citizenship and Immigration Services.   Prior to this rule, certain categories, such as E-3s, must have an approved extension prior to the expiration of the current period of authorized stay in order to avoid a lapse in work authorization.  If, during the extension, the authorized stayed lapsed, the E-3 holder could no longer work during that time.

The final rule now allows work authorization for E-3s during the pendency of their extension in the same way that H-1Bs and L-1s are afforded. In other words, they are eligible for an automatic 240-day extension of employment authorization where the nonimmigrant’s period of authorized stay has expired but where a timely application for an extension of stay has been filed.

For clients thinking about filing an E-3 or for those who currently have E-3 beneficiaries and seek to extend their petitions, this is great news.  They no longer have to file it so far in advance (a minimum of 6 months) or remain anxious about gaps in employment for their E-3 due to pending adjudication.   This change will minimize workforce disruptions for U.S. employers and ease hardships and avoid gaps in employment authorization.  As a result of this regulatory change, employers will be able to reverify affected workers on Form I-9 without the need to wait for an approval of the extension petition.

USCIS has posted guidance for employers on how to annotate and reverify the Form I-9: “If an employer has timely filed an extension of stay for its H-1B1, E-3 or CW-1 nonimmigrant employee, the employer should write “240-Day Ext” and the date the employer submitted the Form I-129, Petition for a Nonimmigrant Worker, or Form I-129CW petition to USCIS in Section 2. The employer must reverify the employee’s employment authorization in Section 3 once a decision is received on the request for an extension of stay or by the end of the 240-day period, whichever comes first.” This is consistent with general guidance on the 240-day rule contained in the April 30, 2013, version of the M-274 Handbook for Employers. The M-274 further advises employers to retain proof of timely filing of the extension with USCIS.

This amended regulation took effect on February 16, 2016.

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