DHS Posts Final Rule on Visa Classifications

Visa DecisionWith the goal of removing “unnecessary hurdles” for those holding H-1B1, E-3 and CW-1 nonimmigrant classifications and the EB-1 immigrant classification, the Department of Homeland Security (DHS) has amended regulations with a final rule, posted in the Federal Register. According to a January 15, 2016 release on the rule, the revised regulations remove a distinct “disadvantage when compared to similarly situated workers in other visa classifications.”

The rule, which goes into effect on Feb. 16, affects 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.

Amended regulations include:

  • H-1B1 and principal E-3 classifications will be included in the list of classes of foreign nationals authorized for employment incident to status with a specific employer. This lets H-1B1 and principal E-3 nonimmigrants work for the sponsoring employer without having to separately apply for employment authorization.
  • Continued employment authorization with the same employer for up to 240 days for H-1B1 and principal E-3 nonimmigrants with expired status when their employer’s timely-filed extension of stay request remains pending.
  • The same continued employment authorization extends to CW-1 nonimmigrants with expired status whose employer’s timely-filed Form I-129CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker, request for an extension of stay remains pending.
  • Principal E-3 and H-1B1 nonimmigrant classifications are now included in existing regulations on the filing procedures for extensions of stay and change of status requests.
  • Employers petitioning for EB-1 outstanding professors and researchers will now be allowed to submit initial evidence comparable to the other forms of evidence already listed in 8 CFR 204.5(i)(3)(i). This is much like certain employment-based immigrant categories that already allow for submission of comparable evidence.

No additional costs for employers, workers or any government entity will incur additional costs with the implementation of the final rule. The rule is designed to make H-1B1 and E-3 nonimmigrant regulations more consistent with similar nonimmigrants worker classifications, and also to minimize employment disruptions for U.S. businesses as well as expand recruiting opportunities.

“We constantly strive to improve our processes and ensure fair and consistent access to immigration benefits,” U.S. Citizenship and Immigration Services Director León Rodríguez said in the release. “This Enhancing Opportunities rule removes unnecessary hurdles that place workers at a disadvantage and will be beneficial to both employers and their workers.”