USCIS has issued a final rule, effective as of February 16, 2016, impacting the H-1B1 (specialty occupation workers from Chile and Singapore), E-3 (specialty occupation workers from Australia), and CW-1 (Northern Mariana Islands CNMI-only transitional workers) nonimmigrant categories...

By Tabitha O'Connell

USCIS has issued a final rule, effective as of February 16, 2016, impacting the H-1B1 (specialty occupation workers from Chile and Singapore), E-3 (specialty occupation workers from Australia), and CW-1 (Northern Mariana Islands [CNMI]-only transitional workers) nonimmigrant categories, as well as the outstanding professor or researcher subset of the EB-1 (employment-based first preference) immigrant category. The biggest change the final rule makes is to expand the 240-day rule to cover H-1B1, E-3, and CW-1 workers.

The 240-day rule authorizes nonimmigrants to continue working for 240 days past their status expiration date, as long as they have a timely-filed extension pending with USCIS for continuation of employment with the same employer. It had previously covered many nonimmigrant categories, such as H-1B, L-1, R-1, and TN; however, the above-noted three nonimmigrant categories were not covered because they were created later. Without being able to take advantage of the 240-day rule, employers of H-1B1, E-3, and CW-1 workers have had to file extensions far in advance in order to try to avoid gaps in their employees' work authorization.

The new Final Rule also amends the regulations to clarify that H-1B1 and principal E-3 workers automatically have employment authorization (with the employer that filed their petition) when their petition is approved, unlike other categories which require separate employment authorization even if they have been granted a nonimmigrant status. Another change is that these two categories have now been added to the list of nonimmigrant classifications that require extension of stay or change of status requests to be filed with USCIS. Both of these changes reflect policies that are already in effect, but were not previously noted in the regulations. The reason for these changes is to standardize the regulations that apply to the affected categories and similar ones. According to the final rule, these three categories have been at a disadvantage compared to other, similar classifications: “By proposing this rule, DHS intended to remove current regulatory obstacles that may cause unnecessary disruptions to petitioning employers' productivity. DHS also intended to remove obstacles for these workers to remain in or enter the United States and to treat them in the same way as others under similar classifications are treated.”

Also included in the final rule are changes to the regulations regarding EB-1 outstanding professors or researchers. Previously, the regulations had listed six types of evidence that could be used to prove that an intending immigrant is recognized internationally as outstanding in their field, and petitioners were required to submit at least two of them. Now, however, the regulations will state that evidence comparable to the noted types may be submitted, if the listed ones do not apply.

This change has been made because the previous version of the regulations “may not fully encompass other types of evidence that may be comparable, such as evidence that the professor or researcher has important patents or prestigious peer reviewed funding grants”. The new language will make it easier for employers to prove that a prospective employee qualifies for the EB-1 category. In addition, “these changes will further the goal of removing unnecessary obstacles for these workers to seek admission to the United States as an immigrant.”