Friday, April 3, 2015

USCIS TO ALLOW DUAL INTENT, 240 WORK AUTHORIZATION FOR H-1B1, CW-1, E-3

The USCIS has proposed regulations that will allow H-1B1, CW-1, and E-3 visa holders to have dual intent.  The proposed regulation will also grant extended work authorization to these visa status holders who timely file their visa status extension petitions.  These changes will bring these three categories into harmony with similar employment-based visa status programs, such as the H-1B and the L-1.

Allowing dual intent will remove an unnecessary legal headache when these visa status holders apply for permanent residency.  Currently, H-1B1, CW-1 and E-3 visa status holders must be extremely careful when preparing their green card petitions or risk running afoul of the immigrant intent rule.  Strictly speaking, these visa status holders cannot intend to file for US Permanent Residency.

Granting extended work authorization is also a welcome for these visa status holders.  Under the current interpretation these workers were forced to stop working unless their visa status extension was approved prior to the expiration of the initial visa status.  When the new rule is finalized, those in H-1B1, CW-1, and E-3 visa status will be allowed to work during the pendency of their visa status extension petition, even if the extension petition is not approved before the expiration of the prior status.  This work authorization is for 240 days, per 8 CFR 274a.12(b)(20).

These visa categories were all established in the mid-2000s.  The H-1B1 provides an H-1B-like visa status for Singaporean and Chilean nationals.  The E-3 functions similarly for Australian nationals.  These visas were approved by Congress when trade deals were struck with these three countries.  The advantage of these visas is that they are not subject to the H-1B cap.  There are quotas for these categories, although none of the quotas have veer been reached.

The CW-1 is transitional visa used for foreign nationals seeking to enter the Commonwealth of the Northern Marianas Islands.  The CW-1 visa was set to sunset in 2014, but recent legislation extends the transitional visa until December 31, 2019.

Healthcare workers who work in occupations that require at least a Bachelor degree may qualify for these visas.  Typically we see these visas used by Physical Therapists, Occupational Therapists, Doctors, Pharmacists, and Speech Language Pathologists.

6 comments:

  1. Could you kindly give some clarification regarding E3 visa. Is it mandatory for Australian national that his or her country of birth has to be Australia or will nationality become eligible to apply for E3 visa

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  2. Nationality is the only factor. One does not need to be born in Australia.

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  3. Nationality is the only factor. One does not need to be born in Australia.

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  4. can an occupational therapist be directly applied for a greencard even of he/she is not currently and have not worked in the US?

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  5. yes - but the OT will need a US employer to sponsor the green card

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  6. does the dual intent for e-3 is approved?

    i cannot find any text saying about dual intent in the proposal.

    thanks for your guidance.

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