View Rule

The Department of Homeland Security (DHS) is updating the regulations to include nonimmigrant high-skilled specialty occupation professionals from Chile and Singapore (H-1B1) and from Australia (E-3) in the list of classes of aliens authorized for employment incident to status with a specific employer, to clarify that H-1B1 and principal E-3 nonimmigrants are allowed to work without having to separately apply to DHS for employment authorization. DHS is also amending the regulations to provide authorization for continued employment with the same employer if the employer has timely filed for an extension of the nonimmigrant's stay. DHS is also providing for this same continued work authorization for Commonwealth of the Northern Mariana Islands (CNMI)-Only Transitional Worker (CW-1) nonimmigrants if a Petition for a CNMI-Only Nonimmigrant Transitional Worker, Form I–129CW, is timely filed to apply for an extension of stay. In addition, DHS is updating the regulations describing the filing procedures for extensions of stay and change of status requests to include the principal E-3 and H-1B1 nonimmigrant classifications. These changes harmonize the regulations for E-3, H-1B1, and CW-1 nonimmigrant classifications with existing regulations for other, similarly situated nonimmigrant classifications. Finally, DHS is expanding the current list of evidentiary criteria for employment-based first preference (EB-1) outstanding professors and researchers to allow the submission of evidence comparable to the other forms of evidence already listed in the regulations. This harmonizes the regulations for EB-1 outstanding professors and researchers with other employment-based immigrant categories that already allow for submission of comparable evidence. DHS is amending the regulations to benefit these high-skilled workers and CW-1 transitional workers by removing unnecessary hurdles that place such workers at a disadvantage when compared to similarly situated workers in other visa classifications.

Statement of Need:

As proposed, this rule would improve the programs serving the E-3, H-1B1, and CW-1 nonimmigrant classifications and the EB-1 immigrant classification for outstanding professors and researchers. The proposed changes harmonize the regulations governing these classifications with regulations governing similar visa classifications by removing unnecessary hurdles that place E-3, H-1B1, CW-1 and certain EB-1 workers at a disadvantage.

Summary of the Legal Basis:

The Homeland Security Act of 2002, Public Law 107-296, section 102, 116 Stat. 2135 (Nov. 25, 2002), 6 U.S.C. 112, and the Immigration and Nationality Act of 1952 (INA), charge the Secretary of Homeland Security (Secretary) with administration and enforcement of the immigration and nationality laws. See INA section 103, 8 U.S.C. 1103.

Alternatives:

A number of the changes are part of DHS's Retrospective Review Plan for Existing Regulations. During development of DHS's Retrospective Review Plan, DHS received a comment from the public requesting specific changes to the DHS regulations that govern continued work authorization for E-3 and H-1B1 nonimmigrants when an extension of status petition is timely filed, and to expand the types of evidence allowable in support of immigrant petitions for outstanding researchers or professors. This rule is responsive to that comment, and with the retrospective review principles of Executive Order 13563.

Anticipated Costs and Benefits:

The E-3 and H-1B1 provisions do not impose any additional costs on petitioning employers, individuals or Government entities, including the Federal government. The regulatory amendments provide equity for E-3 and H-1B1 nonimmigrants relative to other employment-based nonimmigrants listed in 8 CFR 274a.12.(b)(20). This provision may also allow employers of E-3 or H-1B1 nonimmigrant workers to avoid the cost of lost productivity resulting from interruptions of work while an extension of stay petition is pending. The regulatory changes that clarify principal E-3 and H-1B1 nonimmigrant classifications are employment authorized incident to status with a specific employer and that these nonimmigrant classifications must file a petition with USCIS to make an extension of stay or change of status request, simply codify current practice and impose no additional costs. Likewise, the regulatory amendments governing CW-1 nonimmigrants would not impose any additional costs for petitioning employers or for CW-1 nonimmigrant workers. The benefits of the rule are to provide equity for CW-1 nonimmigrant workers whose extension of stay request is filed by the same employer relative to other CW-1 nonimmigrant workers. Additionally, this provision mitigates any potential distortion in the labor market for employers of CW-1 nonimmigrant workers created by current inconsistent regulatory provisions which currently offer an incentive to file for extensions of stay with new employers rather than current employers. The portion of the rule addressing the evidentiary requirements for the EB-1 outstanding professor and researcher employment-based immigrant classification allows for the submission of comparable evidence (achievements not listed in the criteria such as important patents or prestigious, peer-reviewed funding grants) for that listed in 8 CFR 204.5(i)(3)(i)(A) through (F) to establish that the EB-1 professor or researcher is recognized internationally as outstanding in his or her academic field. Harmonizing the evidentiary requirements for EB-1 outstanding professors and researchers with other comparable employment-based immigrant classifications provides equity for EB-1 outstanding professors and researchers relative to those other employment-based visa categories.

Risks: