USA: USCIS to provide extension of work authorization to H-1B1s and E-3s with timely-filed application to extend a stay

USCIS will soon provide extended work authorization benefits to Chilean and Singaporean H-1B1 and Australian E-3 non-immigrants who are being sponsored for an extension of their stay, under a final rule that will be published in the Federal Register on January 15, 2016.  The regulation will also update evidence requirements for EB-1 outstanding professor or researcher petitions.  The rule – which has been in development for several years – will take effect on February 14, 2016.

The new rule will give eligible H-1B1s and E-3s an additional 240 days of work authorization beyond the expiration date of their Form I-94 arrival record, as long as a timely USCIS petition to extend status has been filed by the employer that sponsored the most recent period of stay. The work authorization extension will also be available to those in the CW-1 category for certain foreign workers in the Commonwealth of the Northern Mariana Islands. Under current regulations, the 240-day extension is available to qualifying H-1Bs and L-1s, among others.   

The rule will also update the employment authorization regulations to reflect that H-1B1s, principal E-3s and CW-1s are authorized to work with a specific employer incident to their non-immigrant status.  

Evidence Requirements for EB-1 Outstanding Professor/Researcher Petitions

Separately, the new rule will expand the types of initial evidence that may be submitted in support of a Form I-140 petition for an EB-1 outstanding professor or researcher. 

Current agency regulations enumerate specific types of evidence that may be considered when determining whether a professor or researcher has established that he or she is recognized internationally as outstanding in his or her academic field.  However, the regulations have never clearly permitted adjudicators to consider “comparable evidence” when the enumerated criteria do not readily apply to the professor or researcher’s field of expertise – an accommodation that is explicitly permitted under the EB-1 extraordinary ability subcategory.  Under the new rule, comparable evidence will be considered in outstanding professor or researcher petitions, thus providing the same evidentiary flexibility given to those requesting classification under the EB-1 extraordinary ability subcategory.  

What This Means for Employers and Foreign Nationals

The expansion of the 240-day extension of employment authorization to H-1B1, E-3 and CW-1 non-immigrants will help employers and foreign nationals avoid gaps in employment while extensions of stay are pending, a benefit that has long been provided to H-1B and L-1 workers.   USCIS has not addressed how the new rule will affect  H-1B1, E-3 and CW-1 non-immigrants with extensions pending on February 14, the date the rule becomes effective, but is expected to clarify the issue in future guidance.  

The revision of the evidentiary requirements for EB-1 outstanding professors or researchers will help reduce the burden on petitioning employers and foreign beneficiaries by explicitly permitting the consideration of alternative forms of evidence to demonstrate that the beneficiary has attained international recognition.  

Stuart Beaty

Celsium, Birmingham, UK