New USCIS Regulation Offers Stability to Certain Workers and Employers

On January 15, USCIS published a final regulation that will offer greater predictability and opportunities for employers and foreign workers in the H-B1, E-3, and CW-1 categories, as well as those applying for permanent residence as an Outstanding Professor or Researcher.

The most significant part of the regulation, which is effective on February 16, 2016, is the application of continued work authorization to H-1B1, E-3, and CW-1 temporary workers with a pending, timely filed extension of stay petition. As background, the H-1B1 and E-3 categories allow nationals of Chile and Singapore (H-1B1) and Australia (E-3) to work in specialty occupations in the U.S. The CW-1 category covers employment solely in the Commonwealth of the Northern Mariana Islands (CNMI).

The regulations have for many years provided up to 240 days of continued work authorization to temporary workers in the E-2, H-1B, J-1, L-1, O-1, and TN categories who have a pending, timely filed application for extension of stay filed by the same employer. The new regulation extends this 240-day period to workers in the H-1B1, E-3, and CW-1 categories.

If an employer files an extension petition for a worker in any of these categories prior to the expiration date of the current petition, the employee has continued employment authorization for up to 240 days from the date of expiration of the current petition if USCIS does not approve the extension before that date. This welcome change will put H-1B1, E-3, and CW-1 workers on equal footing with other similarly situated workers and will prevent lost wages and lost productivity caused by an inability to continue working while awaiting an extension.

Another key element of the regulation is the broadening of evidence that petitioners can submit in support of EB-1 immigrant petitions to classify outstanding professors and researchers for permanent residence. To qualify as an outstanding professor or researcher, current regulations require the professor or researcher to prove international recognition by submitting specific documentation to meet at least two out of a list of six criteria.

The new regulation allows for the submission of “comparable evidence” to the specific documentation already required by the regulation. This expansion of the type of acceptable evidence harmonizes the EB-1 outstanding professor and researcher category with other similar categories, such as EB-1 for those with “extraordinary ability” and EB-2 for those with “exceptional ability.”

The new rule makes some additional technical modifications so that the affected sections are consistent with both the Immigration and Nationality Act and other, related regulations, including clarifying that H-1B1, E-3, and CW-1 workers do not require employment authorization separate from the approved petition and adding the H-1B1 and E-3 categories to the procedural regulations governing petitions for extension of stay.

Please contact us with any questions.