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Recent changes for H-1B1, E-3, CW-1 and EB-1 applicants

DHS Enhances Opportunities for H-1B1, E-3, CW-1 Nonimmigrants and Certain EB-1 Immigrants

On January 15, 2016, the Department of Homeland Security (DHS) amended its regulations in order to enhance opportunities for H-1B1, E-3, CW-1 nonimmigrant classifications and the EB-1 immigrant classification.

What are the H-1B1, E-3, CW-1 nonimmigrant classifications and the EB-1 immigrant classification?

- H-1B1: This program allows employers to temporarily employ foreign workers from Chile and Singapore in the U.S. on a nonimmigrant basis in specialty occupations. The job must be a professional position that requires a bachelor's degree in the field of specialization.

- E-3: This program allows employers to temporarily employ foreign workers from Australia in the U.S. on a nonimmigrant basis in specialty occupations. The job must be a professional position that requires a bachelor's degree in the field of specialization.

- CW-1: This program allows employers in the Commonwealth of the Northern Mariana Islands to apply for temporary permission to employ foreign workers.

- EB-1: It is a preference category for employment-based permanent residency for foreign nationals who either have "extraordinary abilities," or are "outstanding professors or researchers."

Effective on February 16, 2016, DHS's regulations will be amended as follow:

1) DHS is including H-1B1 and principal E-3 classifications in the list of classes of foreign nationals authorized of 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.

In short, under the new change, H-1B1 and E-3 nonimmigrants will not need to apply for employment authorization.

2) DHS has authorized 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.

In short, the nonimmigrant worker may work for the same employer for up to 240 days, as long as the nonimmigrant worker (through his employer) timely applied for extension of stay.

3) 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.

In short, the nonimmigrant worker may work for the same employer, as long as the nonimmigrant worker timely applied for Form I-129CW and Petition for a CNMI-Only Nonimmigrant Transitional Worker.

4) Existing regulations for the filing procedures of extensions of stay and change of status requests now include principal E-3 and H-1B1 nonimmigrant classifications.

In short, the procedures for extensions of stay E-3 and H-1B1 nonimmigrant classifications have become more consistent with other similarly situated nonimmigrant worker classifications.

5) 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.

Similarly, the procedures for EB-1 have become more consistent with other employment-based immigrant categories.

Overall, the change will help with unnecessary hurdles that place workers under H-1B1, E-3, CW-1 and EB-1 at a disadvantage when compared to similarly situated workers in other visa categories. Additionally, the recent amendment will minimize the potential employment disruptions for U.S. employers as well. Lastly, there will be no any additional costs on employers, workers or any governmental entity. Thus, it is expected that the workers under these programs will

Categories: H-1B1, E-3, CW-1