Department of Homeland Security: Alien Workers

The Department of Homeland Security (DHS) has issued final rules allowing an employer to file petitions for alien workers under the O nonimmigrant classification up to one year before the employer needs the worker’s services. The O classification applies to an alien who has “extraordinary ability in the arts, the sciences, education, business or athletics that has been demonstrated by sustained national or international acclaim.” Prior regulations precluded an employer from filing a petition more than 6 months before the employer actually needed the alien’s services. DHS proposed rules allowing employers to file petitions earlier because the timing of the filings, combined with the U.S. Citizenship and Immigration Service’s processing times, meant that adjudications of petitions often were not completed until the time the workers’ services were needed, or later. DHS also proposed requiring employers to file petitions no later than 6 months before the worker’s services were required. However, DHS did not adopt the latter proposal in the final regulations largely because commenters, including educational institutions, indicated they do not necessarily make offers of employment more than 6 months before the employment start date. The final rule is effective May 16, 2007.

72 Fed. Reg. 18,856 (Apr. 16, 2007)
[Final regulation]