On Friday, January 15, 2016, the U.S. Department of Homeland Security published a final rule—Enhancing Opportunities for H–1B1, CW–1, and E–3 Nonimmigrants and EB–1 Immigrants—in the Federal Register. The new regulations, which will go into effect on February 16, 2016, apply existing rules to additional, similar visa categories, and are intended to benefit highly skilled workers and CW–1 nonimmigrant workers.

Specifically, the rule that allows an individual to continue to work for the same employer for up to 240 days after their I–94 expires while a timely filed extension is pending, will now be applied to the H–1B1 and E–3 specialty occupation categories, as well as nonimmigrant workers in the Commonwealth of the Northern Mariana Islands (CNMI)-Only Transitional Worker (CW–1) classification. Additionally, the new rule further formalizes work authorization incident to status as well as extension of status and change of status procedures for H–1B1 and E–3 nonimmigrants.

The new rule also expands the list of acceptable evidence to establish eligibility under the EB–1 Outstanding Professor or Researcher category. Specifically, a provision will be added to the regulations at 8 CFR 204.5(i)(3) allowing for “comparable evidence.” This provision is already in the regulations for the EB–1 Extraordinary Ability category. Comparable evidence could include documentation pertaining to important patents, prestigious peer-reviewed funding grants, and any other documentation establishing a beneficiary as outstanding in his or her academic field. Petitioners would also need to establish that the evidence they are presenting is comparable to the other forms of evidence listed in the regulations and that the standards under the enumerated criteria do not readily apply to the evidence that they propose to submit.

These changes are intended to harmonize the regulations for beneficiaries in the above discussed visa categories, as those rules are already in place for similarly situated workers in other visa classifications.


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Ogletree Deakins has one of the largest business immigration practices in the United States and provides a wide range of legal services for employers seeking temporary business visas and permanent residence on behalf of foreign national employees.

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