DHS Publishing final 240-Day Rule expanding work authorization options for H-1B1, E-3, and CW-1 Nonimmigrants

On January 15, 2016, the Department of Homeland Security (DHS) amended its regulations 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.

This final rule, effective on Feb. 16, 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.

Specifically, this final rule amends DHS regulations as described below:

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. The prior "240 Day Rule" authorized by DHS permits an H-1B nonimmigrant worker to continue to work with same employer for up to 240 days beyond the date of expiration on the visa, so long as an extension of stay has been filed prior to the expiration date (i.e. timely filed). 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. 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. As a result of this...