Today, February 15, 2016, DHS published its Final Rule on Enhancing Opportunities for H-1B1, CW-1, and E-3 Nonimmigrants and EB-1 Immigrants. The rule, which was initially proposed by DHS in May 2014, extends the 240-day employment authorization rule to H-1B1s, E-3s, and CMNI workers, and adds a "comparable evidence" provision for outstanding professors and researchers, among other things. In doing so, these rules will provide much-needed relief to H-1B1, CW-1, and principal E-3 applicants by removing unnecessary obstacles these nonimmigrant workers face to continue working in the United States, and for EB-1 outstanding professors and researchers to seek admission as immigrants. The final rule will be effective in mid-February, 30 days from publication.
WHO THIS IMPACTS
In this final rule, the Department of Homeland Security (DHS) is revising its regulations affecting highly skilled workers in the nonimmigrant classifications for specialty occupation from Chile, Singapore (H-1B1), and Australia (E-3); nonimmigrant workers in the Commonwealth of the Northern Mariana Islands (CNMI)-Only Transitional Worker (CW-1) classification; and the immigrant classification for employment-based first preference (EB-1) outstanding professors and researchers. DHS anticipates that these changes to the regulations will benefit these highly skilled workers and CW-1 nonimmigrant workers by removing unnecessary hurdles that place such workers at a disadvantage when compared to similarly situated workers in other visa classifications.
WHAT THIS MEANS
The specific changes made by the rule are outlined below:
(1) The rule clarifies that principal E-3 and H-1B1 nonimmigrants are authorized to work for the specific employer listed in their petition incident to their nonimmigrant status, without requiring separate approval for work authorization from USCIS.
(2) The rule authorizes continued employment authorization for CW-1, principal E-3, and H-1B1 nonimmigrants with pending, timely filed extension of stay requests.
Under current regulations, H-1B1, CW-1, and principal E-3 nonimmigrants are not included in the regulations that authorize continued employment while a timely filed extension of stay request is pending. The regulations currently authorize foreign nationals in other specific nonimmigrant classifications to continue employment with the same employer for a 240-day period beyond the authorized period specified on the Arrival-Departure Record, Form I-94, as long as a timely request for an extension of stay has been filed. This means that these individuals can continue to work with the specific employer listed in their petition, even after their authorized stay expires, as long as their extension of stay request was filed prior to the expiry date on their I-94 and is still pending. Because Congress created the E-3, H-1B1, and CW-1 nonimmigrant classifications after this specific regulatory provision became effective, E-3, H-1B1, and CW-1 nonimmigrant workers were not included in this provision and, thus, did not receive the benefits of continued employment authorization with the same employer beyond the existing authorization while waiting for USCIS to adjudicate an extension of stay request. With this final rule, DHS is amending its regulations a to give H-1B1, CW-1, and principal E-3 nonimmigrants the same treatment as other, similarly situated nonimmigrants, such as H-1B, E-1, and E-2 nonimmigrants.
(3) The rule updates the regulations describing the filing procedures for extension of stay and change of status requests to include the principal E-3 and H-1B1 nonimmigrant classifications, which were not previously codified in any regulation.
(4) The rule will allow a petitioner who wants to employ an EB-1 outstanding professor or researcher to submit evidence comparable to the evidence otherwise described in the EB-1 regulations which may demonstrate that the beneficiary is recognized internationally as an outstanding professor or researcher.
The language of the current EB-1 regulations for outstanding professors and researchers does not expressly permit other types of evidence, such as evidence that the professor or researcher has important patents or prestigious peer-reviewed funding grants, to be considered when adjudicating these petitions. In this final rule, DHS is modifying the regulations describing permissible initial evidence for outstanding professors and researchers to allow a petitioner to submit evidence that is comparable to the currently accepted evidence listed in the regulatory provision to demonstrate that such beneficiaries are recognized internationally as outstanding in their academic areas. The final rule clarifies that, similar to the EB-1 extraordinary ability regulations, a petitioner may submit such evidence instead of, or in addition to, the enumerated list of currently accepted evidence as long as the petitioner establishes that the evidence is comparable to those listed in the regulations and the standards outlined in the regulations do not readily apply. This change provides greater flexibility for outstanding professors and researchers because the petitioner will no longer be limited to the list of initial evidence.
THINGS TO KEEP IN MIND
The final rule will be effective in mid-February, 30 days from publication. Employers are encouraged to contact immigration counsel to discuss any employees who may benefit from these changes and may wish to consider timing EB-1 outstanding professor or researcher petitions and E-3, H-1B1, and CW-1 extension filings accordingly where possible.