Wolfsdorf Rosenthal LLP

DHS Revises Regs on H-1B1, E-3, CW-1 Nonimmigrants and Certain EB-1 Immigrants


In a final rule effective February 16, 2016, the Department of Homeland Security (DHS) is amending its regulations affecting 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.

Specifically, the final rule amends DHS regulations to:

  • Include 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 can work for a sponsoring employer without having to apply separately for employment authorization;
  • Authorize continued employment with the same employer for up to 240 days for an H-1B1 or principal E-3 nonimmigrant whose status has expired while his or her employer’s timely filed extension of stay request remains pending;
  • Provide this same continued employment authorization for a CW-1 nonimmigrant whose status has expired while his or her employer’s timely filed Form I-129CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker, request for an extension of stay remains pending;
  • Include principal E-3 and H-1B1 nonimmigrant classifications in existing regulations on the filing procedures for extensions of stay and change of status requests; and
  • Allow employers petitioning for EB-1 outstanding professors and researchers to 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.

DHS said the final rule does not impose any additional costs on employers, workers, or any governmental entity. Further, DHS noted, 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.”

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