DHS Announces Final Rule for H-1B1, E-3, and CW-2 Nonimmigrants and Certain EB-1 Immigrants

January 15, 2016

Effective February 16, 2016, newly amended regulations of the Department of Homeland Security (DHS) will provide the following for highly skilled workers in the nonimmigrant classifications for specialty occupations from Chile, Singapore (H-1B1) and Australia (E-3), the immigrant classification for employment-based first preference (EB-1) outstanding professors and researchers, and nonimmigrant workers in the Commonwealth of the Northern Mariana Islands (CNMI)-Only Transitional Worker (CW-1) classification :

DHS is including H-1B1 and principal E-3 classifications in the list of classes of foreign nationals authorized for employment incident to status with a specific employer. This means that H-1B1 and principal E-3 nonimmigrants are allowed to work for the sponsoring employer without having to separately apply for employment authorization.

DHS is authorizing continued employment with the same employer for up to 240 days for H-1B1 and principal E-3 nonimmigrants whose status has expired while their employer’s timely filed extension of stay request remains pending.

DHS is providing this same continued employment authorization for CW-1 nonimmigrants whose status has expired while their employer’s timely filed Form I-129CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker, request for an extension of stay remains pending.

Existing regulations on the filing procedures for extensions of stay and change of status requests now include principal E-3 and H-1B1 nonimmigrant classifications.

Employers petitioning for EB-1 outstanding professors and researchers may now submit initial evidence comparable to the other forms of evidence already listed in 8 CFR 204.5(i)(3)(i), much like certain employment-based immigrant categories that already allow for submission of comparable evidence.

Per the USCIS’ press release, this final rule does not impose any additional costs on employers, workers or any governmental entity. Further, “changing the employment authorization regulations for H-1B1 and E-3 nonimmigrants makes them consistent with other similarly situated nonimmigrant worker classifications. Additionally, this rule minimizes the potential of employment disruptions for U.S. employers of H-1B1, E-3 and CW-1 nonimmigrant workers. Finally, DHS expects that this change will help U.S. employers recruit EB-1 outstanding professors and researchers by expanding the range of evidence that U.S. employers may provide to support their petitions.”

The USCIS press release further quotes U.S. Citizenship and Immigration Services Director León Rodríguez : “We constantly strive to improve our processes and ensure fair and consistent access to immigration benefits….This Enhancing Opportunities rule removes unnecessary hurdles that place workers at a disadvantage and will be beneficial to both employers and their workers.”

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