The Department of Homeland Security (DHS) recently published a Final Rule in the Federal Register revising its regulations affecting highly‑skilled workers in the nonimmigrant classifications for specialty occupation from Chile, Singapore (H–1B1), and Australia (E–3) and the immigrant classification for employment-based first preference (EB–1) outstanding professors and researchers.  The Rule will also make changes for the nonimmigrant workers in the Commonwealth of the Northern Mariana Islands (CNMI)-Only Transitional Worker (CW–1) classification.

The new rule will bring the H-1B1, E-3, and CW-1 visas in line with other work visas by providing an additional 240 days of automatic work authorization beyond the expiration date of their Form I-94 arrival record, when a timely US Citizenship and Immigration Services (USCIS) petition to extend status is filed by the employer. The rule will also make a technical change to the regulations by codifying the long-standing practice reflecting that H-1B1s, principal E-3s and CW-1s are authorized to work with a specific employer incident to their nonimmigrant status.  In other words, they can work for their employer as soon as they arrive in the US or obtain such nonimmigrant status without requesting a separate work authorization document.  These fixes have been a long-time coming given that the visa categories were initially negotiated by treaty and passed into law in 2003, 2005 and 2008, respectively.

A few questions remain regarding the implementation of this new rule. How will the new rule affect H-1B1, E-3 and CW-1 nonimmigrants with extensions pending when the rule takes effect?  Will USCIS add these categories to its Premium Processing Service which provides expedited processing for certain employment-based petitions and applications?  We expect (or at least hope) this will happen in the near future.

As a bonus for universities and employers with R&D departments that file immigrant petitions for EB–1 Outstanding Professors and Researchers, DHS is expanding the regulations permitting petitioners to submit “comparable evidence” to the other forms of evidence already listed in the regulations.  The comments to the Rule state this “will harmonize the regulations for EB–1 outstanding professors and researchers with certain employment-based immigrant categories that already allow for submission of comparable evidence.”   It is expected that this revision of the evidentiary requirements will reduce the burden on petitioning employers to demonstrate that the beneficiary has attained international recognition as outstanding in his or her academic field.

The Rule takes effect on February 16, 2016.