On January 15, 2016, the Department of Homeland Security (DHS) posted a final rule in the Federal Register which revises its regulations affecting highly skilled workers in the nonimmigrant classifications for specialty occupations from Chile/Singapore (H-1B1), Australia (E-3), nonimmigrant workers in the Commonwealth of the Northern Mariana Islands (CNMI)-Only Transitional Worker (CW-1) classification, and the immigrant classification for employment-based first preference (EB-1) outstanding professors and researchers;

The final rule amends DHS regulations as follows:

  • 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 are 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.
  • 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 now include principal E-3 and H-1B1 nonimmigrant classifications.
  • Employers petitioning for EB-1 outstanding professors and researchers may now submit initial evidence comparable to the other forms of evidence already listed in 8 CFR 204.5(I)(3)(I), much like certain employment-based immigrant categories that already allow for submission of comparable evidence.

According to DHS, the regulatory changes are meant to “improve the programs serving the H-1B1, E-3 and CW-1 nonimmigrant classifications and the EB-1 immigrant classification” and “remove unnecessary hurdles that place such workers at a disadvantage when compared to similarly situated workers in other visa classifications.”