DHS Publishes Final Rule Regarding Certain Immigrant and Nonimmigrant Workers

On January 15, 2016, the Department of Homeland Security (DHS) published a final rule in the Federal Register, amending its regulations relating to the programs serving the H-1B1, E-3 and CW-1 nonimmigrant classifications and the EB-1 immigrant classification. This final rule will not take effect until February 16, 2016.

The final rule revises 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.

This final rule amends DHS regulations as described below:

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 will be 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. This change should make these categories consistent with other similarly situated nonimmigrant worker classifications and minimize the potential of employment disruptions for U.S. employers.

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 will include principal E-3 and H-1B1 nonimmigrant classifications.

Employers petitioning for EB-1 outstanding professors and researchers will be able to submit initial evidence comparable to the other forms of evidence already listed in the relevant regulation, much like certain employment-based immigrant categories that already allow for submission of comparable evidence. 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.

DHS expects that the final rule should not impose any additional costs on employers, workers or any governmental entity. As discussed above, this rule will not take effect until February 16, 2016.

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