New Rules Tweak Certain Nonimmigrant (E-3, H1-B1, CW-1) and Immigrant (Professor/Researcher) Visa Classifications

The Department of Homeland Security (DHS) has published new rules, effective February 16, 2016, that tweak the eligibility requirements or the work authorization process for four visa classifications. Below is a summary of what has changed:

Outstanding professors and researchers are eligible for priority worker immigrant visa classification if they can demonstrate international recognition in their academic field, three years of experience in teaching or research, and an offer of employment at an institution of higher learning or research facility. USCIS regulations provide six categories of acceptable evidence to demonstrate international recognition; however, those categories are limiting and do not specifically allow for other kinds of evidence that could equally establish eligibility. The new rule provides for greater flexibility by adding a catch-all category of acceptable evidence — “comparable evidence to establish . . . eligibility” — that would permit other significant accomplishments and achievements, such as important patents and peer-reviewed funding grants, for consideration. This additional language aligns with comparable evidence that can be presented in the extraordinary ability category.

E-3, H-1B1, and CW-1 are nonimmigrant work visa categories that have been treated as the other nonimmigrant work-visas classifications with respect to work authorization “incident to status,” even though the regulations did not specifically provide for such. Visa holders in other nonimmigrant work-visa classifications are permitted to work for 240 days during the pendency of a timely filed extension application, but these nonimmigrants were not expressly permitted to do so even though in practice they were. The new rule remedies these anomalies and makes the categories consistent.

What are these visas? Available only to nationals from Australia, the E-3 visa is similar to the H-1B professional specialty worker visa. The H-1B1 visa is a result of free trade agreements with Chile and Singapore and is also similar to the H-1B. The CW-1 visa allows certain workers in the Commonwealth of the Northern Mariana Islands (CNMI), a small group of islands within the Mariana archipelago that has been under U.S. control since the end of World War II, to work there. The CNMI has its own immigration laws but is slowly transitioning to U.S. federal immigration compliance.