Amended Federal Rules Broaden Evidence for EB1 Outstanding Professors and Researchers and Help Foreign Professionals Extend Stay with U.S. Employers and Limit Disruptions to the Workforce, among Other
The complicated patchwork of American immigration rules just became a bit easier for specialized professionals from Singapore, Chile, and Australia, and for temporary workers in the Northern Mariana Islands, a U.S. commonwealth in the Pacific Ocean.
A new rule also expands the type of evidence outstanding professors and researchers seeking to enter the U.S. can show.
The string of revised federal regulations, which went into effect in February 2016, target individuals with H-1B1,[1] E-3,[2] and CW-1[3] status. Most of the changes focus on limiting disruptions to the U.S. employer’s workforce while the foreign employee’s extensions are pending, and easing the means for these nonimmigrant professionals to apply for and extend their status. The changes reconcile some of the years-long differences between the Immigration Nationality Act and the federal regulations, and resolve conflicts between the rules and actual practices. The revised regulations provide the following:
Evidence broadened for EB-1(b) outstanding professors and researchers
Finally, the amended federal rules are broadening the types of evidence allowed for EB-1(b) outstanding professors and researchers. These petitioners are now permitted to submit evidence comparable to the other forms of evidence already listed in 8 C.F.R. § 204.5(i)(3)(i).
The regulation at 8 C.F.R. § 204.5(i)(3)(i) provides that the EB-1(b) petitioner for outstanding professor or researcher must meet the evidentiary threshold of at least two of the following criteria:
- Documentation of the alien’s receipt of major prizes or awards for outstanding achievement in the academic field;
- Documentation of the alien’s membership in associations in the academic field which require outstanding achievements of its members;
- Published material in professional publications written by others about the alien’s work in the academic field;
- Evidence of the alien’s participation, either individually or on a panel, as the judge of the work of others in the same or an allied academic field;
- Evidence of the alien’s original scientific or scholarly research contributions to the academic field; or
- Evidence of the alien’s authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field.
The new category mirrors the allowance for comparable evidence as seen in the similarly-situated categories of EB-1(a) for extraordinary ability aliens and EB-2, exceptional ability.
During the comments period of the then-proposed rule change, a number of individuals voiced their support in allowing more flexibility for outstanding professor and researcher applicants to evidence their merit; supporters said it would increase the talent pool in academia and in the fields of research and development, which could ultimately benefit the U.S. economy. Critics argued that the move could displace U.S. workers.
The amended rule, as adopted, provides that a petitioner for an outstanding professor or researcher need not prove that a particular criterion is not readily applicable “to the beneficiary’s occupation” before they can submit comparable evidence; rather, the petitioner must show that the criteria listed above does not readily apply to the evidence the petitioner proposes to submit. “[T]he petitioner may then submit alternative, but qualitatively comparable evidence for those standards. The existing evidentiary standards listed in 8 C.F.R. § 204.5(i)(3)(i) serve as a roadmap for determining . . . the quantify and types of evidence that should be submitted in order . . . to be considered ‘comparable.’”[4] Examples of comparable evidence that may substitute traditional types of evidence include awards of important patents as well as prestigious, peer-reviewed funding or grants.
Now recognized as employed “incident to status”
Professionals with H-1B1 and E-3 categories now join a list of similar classes, such as H1-B, authorized to work for a specific employer “incident to status.” This means that if you fall within these categories, you do not have to file a separate employment authorization form in order to work for the employer who is sponsoring you. This change in the federal regulation at 8 C.F.R. § 274a.12(b) is now consistent with the INA, which had authorized H-1B1 and E-3 specialty workers for “intending employers,” and it conforms with the longstanding practice in which H-1B1 and E-3 workers were approved for their specialty occupations without obtaining separate authorizations to work.
Work period extended up to 240 days while application to extend employment is pending
The Department of Homeland Security has also amended the 8 C.F.R. § 274 a.12(b)(2) to permit professionals with the H-1B1 and E-3 visas to continue to work for their employer up to 240 days after their authorized status has expired, if the employer has timely filed Petition for a Nonimmigrant Worker, Form I-129, to extend the employee’s stay. The maximum 240-day window begins on the date when the authorized stay expires, as specified on the Arrival-Departure Record, Form I-94. The 240-day extension is subject to any limitations and conditions of the initial authorization.
Earlier, during the comments period on the then-proposed regulation change, one employer echoed the grievances of several U.S. employers of foreign professionals. The commentator said that employers had to file extension requests several months in advance to avoid a potential interruption to the workplace should the employee’s status lapse. Yet, despite these early filings, there would be unexpected processing delays, and the employee’s status would inevitably expire before an approved work extension. “In turn, the nonimmigrant employees must stop working, causing serious disruptions to both the employers and their nonimmigrant workers.”[5]
Moreover, the premium processing service is not available for the H-1B1 and E-3 categories. To avoid a disruption, many employees would resort to traveling abroad and applying for a visa foil (visa stamp) at a U.S. consular post, and then re-enter the U.S. in H-1B1 or E-3 status.
According to federal regulators, a petitioner seeking an extension of stay for an employee can file as early as six months before the employee’s authorized stay expires. The average processing time for the USCIS to review these requests is two months.[6] If the H-1B1 or E-3 employee’s authorized period of stay expires, that individual cannot continue to work while the extension is pending. The amended rule provides a 240-day cushion between the employee’s expired stay and approved extended stay. The rule now comports with the protections given to similarly-situated nonimmigrants, such as those professionals in H-1B, E-1, and E-2 status.
The amended rule also applies to CW-1 nonimmigrants, if a petitioner has timely filed a Petition for Petition for a CNMI-Only Nonimmigrant Transitional Worker, Form I-129CW, or successor form requesting an extension of stay. Specific to CW-1 workers, DHS also resolved an inconsistency. The earlier regulations provided for continued work authorization while these workers had petitions pending for a change of employers. The amended rule allows CW-1 workers to continue to work while their extensions are pending to work for the same employer.
Filing procedures for H-1B1 and E-3 now align with similarly-situated nonimmigrants seeking extensions
The regulation at 8 C.F.R.§ 214.1(c)(1) provides:
An employer seeking the services of an E-1, E-2, H-1B, H-2A, H-2B, H-3, L-1, O-1, O-2, P-1, P-2, P-3, Q-1, R-1, or TN nonimmigrant beyond the period previously granted, must petition for an extension of stay on Form I-129. The petition must be filed with the fee required in § 103.7 of this chapter, and the initial evidence specified in § 214.2, and on the petition form.
The amended regulation adds the H-1B1 and E-3 categories to the list of nonimmigrant classes that can file with USCIS within the U.S. for extensions of stay and change of status requests. Tellingly, the I-129 Form was already updated to include H-1B1 and E-3 nonimmigrants, while the federal regulations—until recently, had not reflected these changes. DHS said the change is “merely a correction to outdated regulations . . . .”[7]
[1] Specialty occupation professionals who are citizens of Chile and Singapore
[2] Specialty occupation professionals who are Australian citizens
[3] Transitional works who will be employed in the U.S. commonwealth of the Northern Mariana Islands
[4] DEP’T OF HOMELAND SEC., ENHANCING OPPORTUNITIES FOR H-1B1, CW-1, AND E-3 NONIMMIGRANTS AND EB-1 IMMIGRANTS, FEDERAL REGISTER: THE DAILY JOURNAL OF THE U.S. GOV’T, available at https://www.federalregister.gov/articles/2016/01/15/2016-00478/enhancing-opportunities-for-h-1b1-cw-1-and-e-3-nonimmigrants-and-eb-1-immigrants
[5] The CW-1 classification was created to permit workers, otherwise ineligible for any other nonimmigrant visa classification, to work in the commonwealth of the Northern Mariana Islands during the transition period to the U.S. Federal immigration system. This transition period was to end on December 31, 2014, but in June, 2014, the U.S. Secretary of Labor extended the CW transitional worker program through December 31, 2019. See https://www.federalregister.gov/articles/2016/01/15/2016-00478/enhancing-opportunities-for-h-1b1-cw-1-and-e-3-nonimmigrants-and-eb-1-immigrants=#footnote-23
[6] As of December 2014 xxx available at https://www.federalregister.gov/articles/2016/01/15/2016-00478/enhancing-opportunities-for-h-1b1-cw-1-and-e-3-nonimmigrants-and-eb-1-immigrants
[7] DEP’T OF HOMELAND SEC., ENHANCING OPPORTUNITIES FOR H-1B1, CW-1, AND E-3 NONIMMIGRANTS AND EB-1 IMMIGRANTS, FEDERAL REGISTER: THE DAILY JOURNAL OF THE U.S. GOV’T, available at https://www.federalregister.gov/articles/2016/01/15/2016-00478/enhancing-opportunities-for-h-1b1-cw-1-and-e-3-nonimmigrants-and-eb-1-immigrants