Enhancing Opportunities for H-1B1, CW-1, and E-3 Nonimmigrants and EB-1 Immigrants

On January 15, 2016, the Department of Homeland Security published a final rule to improve the opportunities for highly skilled workers in the nonimmigrant specialty occupation  classifications 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). This is yet another step taken by DHS in response to President Obama’s Executive Actions of November 2014, which are aimed at modernizing and streamlining our legal immigration system. The final rule, Enhancing Opportunities for H-1B1, CW-1, and E-3 Nonimmigrants and EB-1 Immigrants, will be effective on February 16, 2016.

While any improvement to the U.S. immigration system is welcomed, especially as it relates to employment-based visas, the “enhancements” provided under this new rule primarily restore these more recent nonimmigrant classifications to the status quo of other employment-based nonimmigrant classifications. For instance, the 240 Day Rule, which affords other employment-based nonimmigrants to continue working for the same employer for 240 days beyond the validity of an I-94 as long as the extension petition was timely filed, did not extend to H-1B1, E-3, and CW-1 classifications merely because they came into existence after the rule was enacted.

Similarly, regulations permitting extensions of stay and changes of status were enacted prior to the creation of the H-1B1, and E-3, so they were not legally permitted to file for these actions with USCIS despite form instructions permitting such filings. Finally, the rule will allow H-1B1 and E-3 nonimmigrants to accept employment with a specific employer incident to status, although they are already so authorized by statute. In plain English, DHS finally got around to updating the Code of Federal Regulations to include H-1B1, E-3, and CW-1 nonimmigrant classifications. These classifications were established in 2003, 2005, and 2009, respectively. I guess it’s better late than never….

Finally, the rule provides greater flexibility for EB-1 outstanding professors and researchers by modifying the regulations describing permissible initial evidence. Now, comparable evidence, such as important patents or prestigious peer-reviewed funding grants, may be submitted to demonstrate that the beneficiary is recognized internationally as outstanding in their academic areas. Furthermore, this evidence may be submitted instead of or in supplement to the currently accepted list of evidence codified in the regulations. The intent is to remove unnecessary obstacles for these highly skilled professors and researches to seek admission to the US.


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