[Federal Register Volume 81, Number 10 (Friday, January 15, 2016)]
[Rules and Regulations]
[Pages 2068-2084]
From the Federal Register Online via the Government Publishing Office www.gpo.gov
[FR Doc No: 2016-00478]


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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 204, 214, 248, and 274a

[CIS No. 2515-11; DHS Docket No. USCIS-2012-0005]
RIN 1615-AC00


Enhancing Opportunities for H-1B1, CW-1, and E-3 Nonimmigrants
and EB-1 Immigrants

AGENCY: U.S. Citizenship and Immigration Services, Department of
Homeland Security.

ACTION: Final rule.

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SUMMARY: In this final rule, the Department of Homeland Security (DHS)
is revising its regulations affecting: highly skilled workers in the
nonimmigrant classifications for specialty occupation from Chile,
Singapore (H-1B1), and Australia (E-3); the immigrant classification
for employment-based first preference (EB-1) outstanding professors and
researchers; and nonimmigrant workers in the Commonwealth of the
Northern Mariana Islands (CNMI)-Only Transitional Worker (CW-1)
classification. DHS anticipates that these changes to the regulations
will benefit these highly skilled workers and CW-1 nonimmigrant workers
by removing unnecessary hurdles that place such workers at a
disadvantage when compared to similarly situated workers in other visa
classifications.

DATES: This final rule is effective February 16, 2016.

FOR FURTHER INFORMATION CONTACT: Paola Rodriguez Hale, Adjudications
Officer (Policy), Office of Policy and Strategy, U.S. Citizenship and
Immigration Services, Department of Homeland Security, 20 Massachusetts
Avenue NW., Washington, DC 20529-2141. Contact telephone number is
(202) 272-8377.

SUPPLEMENTARY INFORMATION: DHS is revising its regulations affecting:
(1) Highly skilled workers in the nonimmigrant classifications for
specialty occupation from Chile, Singapore (H-1B1), and Australia (E-
3); (2) the immigrant classification for employment-based first
preference (EB-1) outstanding professors and researchers; and (3)
nonimmigrant workers in the Commonwealth of the Northern Mariana
Islands (CNMI)-Only Transitional Worker (CW-1) classification.
Specifically, in this final rule, DHS is amending its regulations
to include H-1B1 and principal E-3 classifications in the list of
classes of foreign nationals authorized for employment incident to
status with a specific employer, and to clarify that H-1B1 and
principal E-3 nonimmigrants are allowed to work without having to
separately apply to DHS for employment authorization.
DHS is also amending the regulations to provide H-1B1 and principal
E-3 nonimmigrants with authorization for continued employment with the
same employer if the employer has timely filed for an extension of the
nonimmigrant's stay. DHS is providing this same authorization for
continued employment for CW-1 nonimmigrants if a petitioner has timely
filed a Petition for a CNMI-Only Nonimmigrant Transitional Worker, Form
I-129CW, or successor form requesting an extension of stay.
In addition, DHS is updating the regulations describing the filing
procedures for extensions of stay and change of status requests to
include the principal E-3 and H-1B1 nonimmigrant classifications. These
changes will harmonize and align the regulations for principal E-3, H-
1B1, and CW-1 nonimmigrant classifications with the existing
regulations for other, similarly situated nonimmigrant classifications.
Finally, DHS is expanding the current list of initial evidence for
EB-1 outstanding professors and researchers to allow petitioners to
submit evidence comparable to the other forms of evidence already
listed in 8 CFR 204.5(i)(3)(i). This will harmonize the regulations for
EB-1 outstanding professors and researchers with certain employment-
based immigrant categories that already allow for submission of
comparable evidence.

Table of Contents

I. Executive Summary
A. Purpose of the Regulatory Action
B. Legal Authorities
C. Summary of the Major Provisions of the Regulatory Action
D. Cost and Benefits
II. Background
A. Current Framework
B. Proposed Rule
C. Final Rule
III. Public Comments on the Proposed Rule
A. Summary of Public Comments
B. General Comments
1. Support
2. Oppose
C. Employment Authorization for E-3 and H-1B1 Nonimmigrants
1. Employment authorization incident to status with a specific
employer
2. Continued employment authorization while a timely extension
of stay request is pending
D. Employment Authorization for CW-1 Nonimmigrants While a
Timely Filed Extension of Stay Request is Pending
E. Application Requirement for E-3 and H-1B1 Nonimmigrants
Requesting Changes of Status or Extensions of Stay
F. Comparable Evidence for EB-1 Outstanding Professors and
Researchers
1. Support
2. Oppose
3. Suggestion for other evidence
G. Miscellaneous Comments
IV. Statutory and Regulatory Requirements
A. Executive Orders 12866 and 13563
1. E-3 and H-1B1 nonimmigrant workers
2. CW-1 nonimmigrant workers
3. EB-1 outstanding professors and researchers
B. Regulatory Flexibility Act
C. Unfunded Mandates Reform Act of 1995
D. Small Business Regulatory Enforcement Fairness Act of 1996
E. Executive Order 13132
F. Executive Order 12988
G. Paperwork Reduction Act

I. Executive Summary

A. Purpose of the Regulatory Action

DHS is amending its regulations in several ways to improve the
programs serving the principal E-3, H-1B1, and CW-1 nonimmigrant
classifications and the EB-1 immigrant classification for outstanding
professors and researchers. These changes will harmonize the
regulations governing these classifications with regulations governing
similar visa classifications and remove unnecessary hurdles that have
placed principal E-3, H-1B1, CW-1 and certain EB-1 workers at a
disadvantage when compared to similarly situated workers in other visa
classifications. DHS believes this rule also best achieves our goal of
addressing unwarranted disparities involving continued employment
authorization among and within particular nonimmigrant classifications.

B. Legal Authorities

Sections 103(a) and 214(a)(1) of the Immigration and Nationality
Act (INA),

[[Page 2069]]

8 U.S.C. 1103(a) and 8 U.S.C. 1184(a)(1), authorize the Secretary of
Homeland Security (Secretary) to administer and enforce the immigration
and nationality laws and to establish by regulation the time and
conditions of admission of nonimmigrants. See also section 451 of the
Homeland Security Act of 2002, Public Law 107-296, 116 Stat. 2135, (6
U.S.C. 271) (describing responsibilities with respect to immigration
services and adjudications). Further, section 274A(h)(3)(B) of the INA,
8 U.S.C. 1324a(h)(3)(B), recognizes the Secretary's authority to extend
employment authorization to individuals who are not citizens or
nationals of the United States. Finally, title VII of the Consolidated
Natural Resources Act of 2008 (CNRA) extends U.S. immigration laws to
the CNMI and authorized the CW nonimmigrant classification. Public Law
110-229, 122 Stat. 754, 853 (2008) (revising 48 U.S.C. 1806).

C. Summary of the Major Provisions of the Regulatory Action

On May 12, 2014, DHS published a proposed rule to amend regulations
governing filing procedures and work authorization for principal E-3
and H-1B1 nonimmigrants (8 CFR 214.1(c)(1) and 8 CFR 248.3(a) with
respect to filing procedures and 8 CFR 274a.12(b)(9) and 8 CFR
274a.12(b)(25) with respect to work authorization), continued work
authorization for principal E-3, H-1B1, and CW nonimmigrants (8 CFR
274a.12(b)(20)), and evidentiary requirements for EB-1 outstanding
professors and researchers (8 CFR 204.5(i)(3)(ii)). By proposing this
rule, DHS intended to remove current regulatory obstacles that may
cause unnecessary disruptions to petitioning employers' productivity.
DHS also intended to remove obstacles for these workers to remain in or
enter the United States and to treat them in the same way as others
under similar classifications are treated. See Enhancing Opportunities
for H-1B1, CW-1, and E-3 Nonimmigrants and EB-1 Immigrants, 79 FR 26870
(May 12, 2014). After careful consideration of public comments, DHS is
adopting the proposed regulatory amendments without change.

D. Cost and Benefits

This final rule will not impose any additional costs on employers,
workers, or any governmental entity. Changing the employment
authorization regulations for H-1B1 and principal E-3 nonimmigrants
will make those regulations consistent with the regulations of other
similarly situated nonimmigrant worker classifications, which will
provide qualitative benefits. In this final rule, DHS also amends its
regulations to authorize continued employment for up to 240 days for H-
1B1, principal E-3, and CW-1 nonimmigrant workers whose status has
expired, provided that the petitioner timely filed the requests for
extensions of stay with U.S. Citizenship and Immigration Services
(USCIS). Such amendment will minimize the potential for employment
disruptions for U.S. employers of H-1B1, principal E-3, and CW-1
nonimmigrant workers. Finally, this final rule may assist U.S.
employers that recruit EB-1 outstanding professors and researchers by
expanding the range of evidence that they may provide to support their
petitions. A summary of the costs and benefits of the changes made by
this rule is presented in Table 1.

Table 1--Summary of Costs and Benefits
------------------------------------------------------------------------
Benefits and avoided
Costs Change costs
------------------------------------------------------------------------
E-3, H-1B1, and CW-1 Nonimmigrants
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None........................ Continued employment Avoided cost of lost
up to 240 days for productivity for
an H-1B1, principal U.S. employers of
E-3 or CW-1 principal E-3, H-
nonimmigrant 1B1, and CW-1
workers while a nonimmigrant
timely filed workers and avoided
request to extend lost wages by the
stay is pending. nonimmigrant
workers. Not
quantified.
Will provide equity
for principal E-3
and H-1B1
nonimmigrants
relative to other
employment-based
nonimmigrants
listed in 8 CFR
274a.12 (b)(20),
and provide equity
for CW-1
nonimmigrants whose
extension request
is filed by the
same employer
relative to other
CW-1 nonimmigrants
who change
employers.
Qualitative
benefit.
Clarify that Ensures the
principal E-3 and H- regulations are
1B1 nonimmigrants consistent with
are work authorized statutory
incident to status, authority, and
and specify current codifies current
filing procedures practice.
for requesting Qualitative
change of status or benefit.
extension of stay..
------------------------------------------------------------------------
EB-1 Outstanding Professors and Researchers
------------------------------------------------------------------------
May help U.S.
employers recruit
EB-1 outstanding
professors and
researchers.
Not quantified.
Allow for the Will provide equity
submission of for EB-1
comparable evidence outstanding
to that listed in 8 professors and
CFR researchers
204.5(i)(3)(i)(A)-( relative to certain
F) to establish employment-based
that the EB-1 immigrants listed
outstanding in 8 CFR 204.5.
professor or Qualitative benefit.
researcher is
recognized
internationally as
outstanding in his
or her academic
field.
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II. Background

A. Current Framework

The Immigration Act of 1990 (IMMACT90), among other things,
reorganized immigrant classifications and also created new employment-
based immigrant classifications. See Public Law 101-649, 104 Stat.
4978. The new employment-based immigration provisions were intended to
cultivate a more competitive economy by encouraging skilled individuals
to immigrate to the United States to meet our economic needs.\1\ Those

[[Page 2070]]

IMMACT90 provisions addressed the need of American businesses for
highly skilled, specially trained personnel to fill increasingly
sophisticated jobs for which domestic personnel could not be found. See
Employment-Based Immigrants, 56 FR 30703 (July 5, 1991). Lawmakers
estimated the need for highly skilled workers based on an increasing
skills gap in the current and projected U.S. labor pools. Id.
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\1\ See Statement by President upon Signing of the Immigration
Act of 1990, 1990 U.S.C.C.A.N 6801-1 (Nov. 29, 1990), available at
http://www.presidency.ucsb.edu/ws/in...ixzz1KvDlYZql;
see also H.R. Rep. No. 101-723(I), at 6721 (1990) (``[I]mmigration
can and should be incorporated into an overall strategy that
promotes the creation of the type of workforce needed in an
increasingly competitive global economy without adversely impacting
on the wages and working conditions of American workers.'').
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American businesses continue to need highly skilled nonimmigrant
and immigrant workers, and the U.S. legal immigration system can be
improved by removing regulatory barriers to lawful employment of these
workers through a system that reflects our diverse values and needs.\2\
Attracting and retaining highly skilled workers is critical to
sustaining our Nation's global competitiveness. By attracting the best
and brightest from around the world, the United States can harness
their talents, skills, and ideas to help the U.S. economy grow.\3\
Governments seeking to make the most of highly skilled nonimmigrants
and immigrants face the challenge of identifying, attracting, and
retaining those with the best prospects for success.\4\
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\2\ See White House, Building a 21st Century Immigration System,
May 2011, at 3 and 9, available at http://www.whitehouse.gov/sites/defa..._blueprint.pdf.
\3\ See White House, Building a 21st Century Immigration System,
May 2011, at 1, available at http://www.whitehouse.gov/sites/defa..._blueprint.pdf.
\4\ See Demetrios G. Papademetriou and Madeleine Sumption,
Attracting and Selecting from the Global Talent Pool, Policy
Challenges, Migration Policy Inst., Sept. 2013, at 4, available at
http://www.migrationpolicy.org/resea...icy-challenges.
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B. Proposed Rule

On May 12, 2014, DHS published a proposed rule in the Federal
Register at 79 FR 26870, proposing to:
Clarify that principal E-3 and H-1B1 nonimmigrants are
authorized to work for the specific employer listed in their petition
without requiring separate approval for work authorization from USCIS
(8 CFR 274a.12(b)(25) and 8 CFR 274a.12(b)(9));
Authorize continued employment authorization for CW-1,
principal E-3, and H-1B1 nonimmigrants with pending, timely filed
extension of stay requests (8 CFR 274a.12(b)(20));
Update the regulations describing the filing procedures
for extension of stay and change of status requests to include the
principal E-3 and H-1B1 nonimmigrant classifications (8 CFR 214.1(c)(1)
and 8 CFR 248.1(a)); and
Allow a petitioner who wants to employ an EB-1 outstanding
professor or researcher to submit evidence comparable to the evidence
otherwise described in 8 CFR 204.5(i)(3)(i), which may demonstrate that
the beneficiary is recognized internationally as an outstanding
professor or researcher.

C. Final Rule

Consistent with the vision of attracting and retaining foreign
workers, this final rule removes unnecessary obstacles for principal E-
3 and H-1B1 highly skilled workers and CW-1 nonimmigrant workers to
continue working in the United States, and for EB-1 outstanding
professors and researchers to seek admission as immigrants. For
example, under current regulations, H-1B1, CW-1, and principal E-3
nonimmigrants are not included in the regulations that authorize
continued employment while a timely filed extension of stay request is
pending. The regulations at 8 CFR 274a.12(b)(20) authorize foreign
nationals in specific nonimmigrant classifications to continue
employment with the same employer for a 240-day period beyond the
authorized period specified on the Arrival-Departure Record, Form I-94,
as long as a timely request for an extension of stay is filed. This
means that these individuals can continue to work with the specific
employer listed in their petition, even after their authorized stay
expires, as long as their extension of stay request is still pending.
Because Congress created the E-3, H-1B1, and CW-1 nonimmigrant
classifications after 8 CFR 274a.12(b)(20) was effective, these
nonimmigrant workers are not included in this provision and cannot
continue to work with the same employer beyond the existing
authorization while waiting for USCIS to adjudicate an extension of
stay request. DHS is amending its regulations at 8 CFR 274a.12(b)(20)
to give H-1B1, CW-1, and principal E-3 nonimmigrants the same treatment
as other, similarly situated nonimmigrants, such as H-1B, E-1, and E-2
nonimmigrants.
Moreover, E-3 and H-1B1 nonimmigrants are not listed in the
regulations describing the filing procedures for extension of stay and
change of status requests. Although the form instructions for H-1B1 and
principal E-3 extension of stay and change of status requests
(Instructions for Petition for a Nonimmigrant Worker, Form I-129) were
updated to include H-1B1 and principal E-3 nonimmigrants when these
categories were first established, the regulations were not. In this
final rule, DHS is amending the regulations to add H-1B1 and principal
E-3 nonimmigrants to the list of nonimmigrants that may extend their
stay or change their status in the United States.
In addition, current regulations do not designate H-1B1
nonimmigrants and principal E-3 as authorized to accept employment with
a specific employer incident to status, although such nonimmigrants are
so authorized by statute. See INA section 212(t)[1st], 8 U.S.C.
1182(t)[1st], (noting the statutory requirements an employer must
fulfill to petition for an H-1B1 or E-3 nonimmigrant); see also INA
sections 101(a)(15)(E)(iii), 8 U.S.C. 1101(a)(15)(E)(iii),
101(a)(15)(H)(1)(b)(1), 8 U.S.C. 1101(a)(15)(H)(1)(b)(1), and
214(g)(8)(C), 8 U.S.C. 1184(g)(8)(C) (requiring ``intending employers''
of certain H-1B1 nonimmigrants to file an attestation with the
Secretary of Labor). The E-3 and H-1B1 nonimmigrant classifications
were established by statute in 2005 and 2003, respectively. See REAL ID
Act of 2005, Public Law 109-13, section 501, 119 Stat. 231; United
States-Singapore Free Trade Agreement Implementation Act, Public Law
108-78, section 402, 117 Stat. 948 (2003); United States-Chile Free
Trade Agreement Implementation Act, Public Law 108-77, sections 402-
404, 117 Stat. 909 (2003). Since that time, the DHS employment
authorization regulations at 8 CFR 274a.12 have not been updated to
include principal E-3 and H-1B1 nonimmigrants as foreign nationals
authorized to accept employment with a specific employer, incident to
status, in the United States as designated by statute.
Finally, the language of the current EB-1 regulations for
outstanding professors and researchers may not fully encompass other
types of evidence that may be comparable, such as evidence that the
professor or researcher has important patents or prestigious peer-
reviewed funding grants. In this final rule, DHS is modifying the
regulations describing permissible initial evidence for outstanding
professors and researchers to allow a petitioner to submit evidence
that is comparable to the currently accepted evidence listed in 8 CFR
204.5(i)(3)(i) to demonstrate that such beneficiaries are recognized
internationally as outstanding in their academic areas. See INA section
203(b)(1)(B), 8 U.S.C. 1153(b)(1)(B). A petitioner may submit such
evidence instead of, or in addition to, the currently accepted evidence
described under 8 CFR 204.5(i)(3)(i), as long as the

[[Page 2071]]

petitioner establishes that the evidence is comparable to those listed
under 8 CFR 204.5(i)(3)(i)(A)-(F) and the standards in 8 CFR
204.5(i)(3)(i) do not readily apply. This change provides greater
flexibility for outstanding professors and researchers because the
petitioner will no longer be limited to the list of initial evidence.
Finally, these changes will further the goal of removing unnecessary
obstacles for these workers to seek admission to the United States as
an immigrant.
In preparing this final rule, DHS considered all the public
comments received and all other materials contained in the docket. This
final rule adopts the regulatory amendments set forth in the proposed
rule without substantive change. The rationale for the proposed rule
and the reasoning provided in its background section remain valid with
respect to these regulatory amendments. Section II.B above and this
section each describe the changes that are the focus of this
rulemaking. This final rule does not address a number of comments that
DHS considered beyond the scope of this rulemaking because the comments
requested changes to the regulations that DHS had not proposed and that
commenters could not have reasonably anticipated that DHS would make.
Such comments include suggestions for expanding premium processing
services and for providing expedited processing for certain family-
based petitions, travel while an application for an adjustment of
status is pending, re-entry permits, translations, grace periods,
specific comments in reference to another DHS rulemaking \5\, numerical
per-country limits, obligations to hire U.S. citizens first, or
questions on a variety of CNMI-specific topics (for example, changes to
CW-1 validity periods, CW-1 reentry permits, the reduction of CW-1
nonimmigrant workers, changes to USCIS processing of petitions for CW-1
workers, and suggestions for waivers of occupational certifications).
Although DHS has carefully reviewed each of these comments, DHS
considers these comments to be out-of-scope for the reasons stated, and
will not take further action on these comments in connection with this
specific rulemaking proceeding. All comments and other docket material
are available for viewing at the Federal Docket Management System
(FDMS) at http://www.regulations.gov, docket number USCIS-2012-0005.
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\5\ These comments were forwarded to the appropriate docket and
considered, as appropriate, in drafting the relevant regulation.
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III. Public Comments on the Proposed Rule

A. Summary of Public Comments

In response to the proposed rule, DHS received 38 comments during
the 60-day public comment period. Commenters included individuals,
employers, workers, attorneys, nonprofit organizations, and one
business organization.
While opinions on the proposed rule varied, a clear majority of the
commenters supported the proposed changes in the rule. Specifically,
supporters of the proposed rule welcomed the proposed employment
authorization changes for principal E-3, H-1B1, and CW-1 nonimmigrants;
the proposed update to the regulations clarifying the application
requirements for E-3 and H-1B1 nonimmigrants requesting changes of
status or extensions of stay; and the comparable evidence provision for
EB-1 outstanding professors and researchers. Several commenters
supported the comparable evidence provision and suggested additional
evidence for DHS to consider when evaluating eligibility for EB-1
outstanding professors and researchers. Overall, the commenters
supported DHS's efforts to harmonize the regulations to benefit highly
skilled workers and CW-1 nonimmigrant workers and to remove unnecessary
hurdles that place such workers at a disadvantage when compared to
similarly situated workers.
Some commenters stated general opposition to the proposed rule, but
did not offer any specific alternatives or suggestions relating to the
proposals outlined in this rulemaking. Another commenter stated that
the changes proposed with respect to EB-1 outstanding professors and
researchers would be insufficient, and proposed a ``point based
system'' instead.
DHS has reviewed all of the public comments received in response to
the proposed rule, and responds to the issues raised by the comments
below. The DHS responses are organized by subject area.

B. General Comments

1. Support
Multiple commenters provided general support for all the proposed
changes in rule. One supporter stated that the proposed regulatory
amendments will benefit many nonimmigrants. Another supporter indicated
that the proposed changes will add to the much-needed math, science,
and technology pool of workers in the United States. One commenter
noted the need for regulatory action in order to attract and retain
workers, and supported the ongoing efforts to harmonize the rules that
are applicable to similarly situated visa categories and bring them in
line with actual agency practice. This same commenter added that the
proposed changes will provide uniformity and predictability for U.S.
employers and their employees and will enhance compliance at virtually
no cost to DHS. Another commenter also underscored the importance of
removing unnecessary regulatory barriers to improve the ability of U.S.
higher education institutions to attract and retain talented and
sought-after professionals. Some commenters supported the changes, but
did not discuss perceived benefits. One commenter requested DHS to
finalize the rule quickly.
2. Oppose
One commenter expressed general opposition to this rulemaking, but
did not cite any specific provision or offer any specific alternatives
or suggestions relating to the proposals outlined in this rulemaking.
Another commenter opposed having temporary worker programs, in general,
but did not offer any specific alternatives that would fall within the
scope of this rule. DHS has not changed the final rule in response to
these comments.

C. Employment Authorization for E-3 and H-1B1 Nonimmigrants

1. Employment Authorization Incident to Status With a Specific Employer
Three commenters supported the proposal to add the H-1B1 and
principal E-3 classifications to the list of nonimmigrants authorized
to work incident to status with a specific employer. They stated that
the proposed change reflects the current practice, which allows work
authorization based on approval of the [nonimmigrant] classification,
but does not require a separate application for employment
authorization. Therefore, the proposed change will produce consistency
between current practice and regulatory language.
One commenter recommended that DHS amend the regulations to list B-
1 nonimmigrant household employees in 8 CFR 274a.12(b) as authorized
for employment with a specific employer incident to status. The
commenter also recommended that DHS amend 8 CFR 274a.12(a) to include
spouses of L-1, E-1, and E-2 nonimmigrants in the categories of
individuals who are authorized for employment incident to status. DHS
has determined that

[[Page 2072]]

expansion of employment authorization beyond the classifications
identified in the proposed rule is not appropriate at this time, and it
has therefore not included such an expansion in this final rule. DHS
did not provide notice to the public or invite public comment on
proposals to make changes to current employment authorization policies
and procedures affecting these classes of nonimmigrants. For these
reasons, DHS is not including the recommended expansion of 8 CFR
274a.12(a) or 8 CFR 274a.12(b) for these particular nonimmigrants in
this final rule.
DHS appreciates commenters' support for the proposal to add the H-
1B1 and principal E-3 classifications to the list of nonimmigrants
authorized to work incident to status with a specific employer. The INA
describes the employment of E-3 and H-1B1 nonimmigrants with a
specific, petitioning employer as the very basis for their presence in
the United States. See INA section 101(a)(15)(E)(iii), 8 U.S.C.
1101(a)(15)(E)(iii); INA section 101(a)(15)(H)(i)(b1), 8 U.S.C.
1101(a)(15)(H)(i)(b1). Similarly situated nonimmigrants, such as H-1B
nonimmigrants, are classified in the regulations as employment
authorized incident to status with a specific employer. See, e.g., 8
CFR 274a.12(b)(9). However, after statutory enactment of the E-3 and H-
1B1 nonimmigrant categories, the provisions in 8 CFR 274a.12(b) were
not updated to include principal E-3 and H-1B1 nonimmigrants.
Therefore, in this final rule, DHS will update its regulations and
adopt, without change, the proposed provision adding principal E-3 and
H-1B1 nonimmigrants to the list of nonimmigrants authorized to work for
the specific employer listed in their petition. Specifically, DHS is
adding a new provision at 8 CFR 274a.12(b)(25) to include principal E-3
nonimmigrants in the list of foreign nationals who are employment
authorized incident to status with a specific employer. DHS is also
amending 8 CFR 274a.12(b)(9) to include the H-1B1 nonimmigrant
classification as employment authorized incident to status with a
specific employer.
2. Continued Employment Authorization While a Timely Extension of Stay
Request Is Pending
DHS received multiple comments regarding the provision authorizing
the continued employment of principal E-3 and H-1B1 nonimmigrants. Most
of these comments supported the provision to authorize the continued
employment for E-3 and H-1B1 nonimmigrants with timely filed, pending
extension of stay requests. One commenter explained that while
employers file extension requests several months prior to the
expiration of the workers' nonimmigrant status, unexpected processing
delays can prevent the extension requests from being approved before
such status expires. In turn, the nonimmigrant employees must stop
working, causing serious disruptions to both the employers and their
nonimmigrant workers. The commenters further stated that the current
lack of continued work authorization results in lost wages to employees
and loss in productivity to employers. The commenters noted that the
continued employment authorization period, which may last up to 240
days, will protect against such interruptions by ensuring that U.S.
employers who employ individuals in the E-3 and H-1B1 nonimmigrant
classifications experience as little disruption as possible in the
employment of their workers. These commenters therefore welcomed the
proposed continued employment authorization because it will minimize
disruption to employers and thereby promote economic growth. These
commenters also supported the continued employment authorization
proposal because it would harmonize the regulations applicable to E-3
and H-1B1 nonimmigrants with regulations applicable to similarly
situated nonimmigrants. For example, one of these commenters noted that
this change would allow colleges and universities to treat their
similarly situated employees in a fair and consistent manner. One of
these commenters also stated that the proposed change would
substantially aid in attracting and retaining these workers.
Additionally, one commenter supported the proposed E-3 continued
work authorization because comparable eligibility for continued work
authorization for H-1B nonimmigrants has been extremely helpful in
allowing the commenter's current tenure-track H-1B faculty,
researchers, and staff to continue employment while USCIS is processing
H-1B extension requests, and would permit similarly situated E-3
employees the same benefit. DHS appreciates the support from the public
for this proposed provision. The potential gap in work authorization
from unanticipated processing delays can burden both employers and
employees alike. DHS also believes it is important to provide employers
of H-1B1 and E-3 nonimmigrants the benefits that accrue from the
predictability that currently is available to employers of
nonimmigrants in similar employment-based nonimmigrant classifications,
who file timely requests for extensions of stay with the same
employers. Therefore, DHS has determined that it will adopt this
provision without change, thereby automatically extending employment
authorization to principal E-3 and H-1B1 nonimmigrants with timely
filed, pending extension of stay requests.
One commenter recommended expanding the 240-day rule to cover Q-1
nonimmigrants. The commenter stated that, as with other nonimmigrant
classifications, government error can delay approval, leading to
serious business disruptions to the employer and adverse consequences
to the workers through no fault of their own.
DHS has determined that expansion of continued employment
authorization beyond the classifications identified in the proposed
rule is not appropriate at this time, and it has therefore not included
such an expansion in this final rule. This suggestion is outside the
scope of this rulemaking, which did not make any proposals or invite
public comment with respect to Q-1 nonimmigrants. Therefore, in this
final rule, DHS will update its regulations at 8 CFR 274a.12(b)(20) and
adopt, without change, the proposed provision to authorize continued
employment authorization for principal E-3 and H-1B1 nonimmigrants with
pending, timely filed extension of stay requests.

D. Employment Authorization for CW-1 Nonimmigrants While a Timely Filed
Extension of Stay Request Is Pending

Six commenters supported the provision for automatic employment
authorization for CW-1 nonimmigrant workers with timely filed, pending
extension of stay requests. One commenter explained that while
employers file extension requests several months prior to the
expiration of the workers' nonimmigrant status, unexpected processing
delays can prevent the extension requests from being timely approved
and cause serious disruptions to employers and nonimmigrants. Another
commenter remarked that current adjudication delays for CW-1
nonimmigrant workers are burdensome on the beneficiaries and on the
local economy, and therefore urged DHS to adopt the proposed continued
work authorization provision for CW-1 nonimmigrant workers. Commenters
commonly stated that the potential lack of work authorization due to a
processing delay results in serious disruption to both an employer's
business and to the employee's life. The

[[Page 2073]]

commenters noted that the 240-day continued employment authorization
would protect against such interruptions by ensuring that U.S.
employers of CW-1 nonimmigrants experience minimal disruption in the
continued employment of their workers. One commenter stated that this
proposed change would alleviate fear among employers and workers of
interruptions in employment resulting from a lack of continued work
authorization. Finally, one commenter stated that the proposed change
would provide equity for CW-1 nonimmigrants by ensuring that they are
afforded the same treatment as other similarly situated individuals.
DHS appreciates the support from the public for this proposed
provision. The disruption of employment can create a burden for both
employers and employees. As a matter of equity, it is also important to
ensure that CW-1 nonimmigrants who are waiting for USCIS to adjudicate
their extension of stay requests with the same employer also benefit
from the continued employment authorization available to other CW-1
nonimmigrants who change employers or an employee under the previous
CNMI immigration system. Current regulations for the continued
employment of CW-1 nonimmigrant workers are also inconsistent.
Specifically, the regulations currently only provide continued work
authorization for CW-1 nonimmigrant workers seeking to change to a new
employer, including a change in employer resulting from early
termination, and not to CW-1 nonimmigrants seeking an extension of stay
with the same employer. 8 CFR 214.2(w)(7). This disparity may serve as
an incentive for CW-1 nonimmigrant workers to change employers just to
maintain continued employment authorization, which will inconvenience
the CW-1 nonimmigrant worker's current employer who might lose the
worker to another employer.
One commenter strongly supported this proposed change and noted
that various employers previously sought to have a continuing work
authorization provision included in the initial CW regulations without
success. The commenter stated that the DHS response to this request
then was that such provision was not authorized by the CNRA.\6\
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\6\ See Public Law 110-229, 122 Stat. 754, 853 (2008). Title VII
of the CNRA (codified, in relevant part, at 48 U.S.C. 1806(d))
extends U.S. immigration laws to the CNMI.
---------------------------------------------------------------------------

DHS notes that the interim rule amending 8 CFR 214.2(w) to create
the CW classification published on October 27, 2009, and provided a 30-
day comment period.\7\ On December 9, 2009, DHS published a notice in
the Federal Register reopening and extending the public comment period
for an additional 30 days.\8\ The commenter did not indicate whether
the commenter submitted the suggestion for the continued employment
authorization provision in response to either of those comment periods.
However, DHS did receive post-publication correspondence requesting
continued employment authorization for workers with pending
extensions.\9\ DHS responded to these post publication correspondence
by stating that CW-1 nonimmigrants do not have continuing employment
authorization while an extension of stay petition is pending. In that
correspondence, DHS noted that it was not in the position to provide
such authorization without a change to the applicable regulations.\10\
Although DHS believes that its implementing CW regulations are
consistent with congressional intent, it subsequently proposed
improvements to the regulations to permit continued employment
authorization during an extension of stay request through this notice
and rulemaking, pursuant to its authority under the INA and the CNRA to
implement such regulations.\11\
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\7\ See Commonwealth of the Northern Mariana Islands
Transitional Worker Classification, 74 FR 55094 (Oct. 27, 2009).
\8\ See Commonwealth of the Northern Mariana Islands
Transitional Worker Classification; Reopening the Public Comment
Period, 74 FR 64997 (Dec. 9, 2009).
\9\ See Joint Letter to Alejandro Mayorkas, USCIS Director, from
the Saipan Chamber of Commerce, the Hotel Association of the
Northern Mariana Islands and the Society for Human Resource
Management CNMI (Dec. 20, 2012).
\10\ See Letter from Alejandro Mayorkas, USCIS Director, to the
Saipan Chamber of Commerce (March 7, 2013).
\11\ See Section 102 of the Homeland Security Act of 2002,
Public Law 107-296, 116 Stat. 2135, 6 U.S.C. 112, and INA 103(a), 8
U.S.C. 1103(a) (authorizes the Secretary to administer and enforce
the immigration and nationality laws); INA 214(a), 8 U.S.C. 1184(a)
(authorizes the admission of nonimmigrants under such conditions as
the Secretary may prescribe by regulation); INA 274A(h)(3)(B)
(recognizes the Secretary's authority to extend employment to
individuals who are not citizens or nationals of the United States);
Public Law 110-229, 122 Stat. 754, 853 (2008) (extending U.S.
immigration laws to the CNMI).
---------------------------------------------------------------------------

One of the commenters also supported the proposed change because it
will help both employers and employees in the CNMI by providing
employers with more time to file extension requests and by allowing
employees to remain in lawful work-authorized status while awaiting the
adjudication of the extension requests filed on their behalf. DHS
appreciates the support for the continued work authorization provision
for CW-1 nonimmigrants. The regulatory changes aim to provide both the
employer and employee with continued employment when an employer files
a timely request for an extension of stay for the CW-1 nonimmigrant
worker. However, this new provision does not change the filing
requirements or allot more time for employers to file extension
requests. Under 8 CFR 214.2 (w)(12)(ii), an employer may file up to 6
months before it actually needs the employee's services, and this
rulemaking does not change this filing requirement. Instead, this
rulemaking provides a mechanism that automatically extends employment
authorization, for a period of up to 240 days, while the employer's
timely filed, extension of stay request remains pending.
One commenter proposed allowing an employee who transfers to
another employer to continue to work pending the adjudication of the
new petition with the prospective employer. DHS's proposed rule did not
suggest continued work authorization for CW-1 nonimmigrant workers
seeking a change of employment because DHS regulations already allow
continued work authorization for changes of employment so long as
certain requirements are met. As described above, under 8 CFR
214.2(w)(7), a CW-1 nonimmigrant worker may work for a prospective new
employer after the prospective employer files a non-frivolous Petition
for a CNMI-Only Nonimmigrant Transitional Worker, Form I-129CW, for new
employment. The employer must file the petition for new employment to
classify the alien as a CW-1 nonimmigrant, before the CW-1 nonimmigrant
worker's authorized period of stay expires. The CW-1 nonimmigrant
worker must not have worked without authorization in the United States
since being admitted. If the petitioner and CW-1 nonimmigrant worker
meet these conditions, then employment authorization will continue
until DHS adjudicates the new petition.
One commenter proposed allowing a terminated employee to continue
to work without interruption, subject to certain conditions. DHS's
proposed rule did not suggest continued work authorization for
terminated CW-1 nonimmigrant workers because USCIS regulations already
allow for continued work authorization for terminated CW-1 nonimmigrant
workers under certain circumstances. Under 8 CFR 214.2(w)(7)(v), a
terminated CW-1 nonimmigrant worker who has not otherwise violated the
terms and conditions of his or her status may work

[[Page 2074]]

for a prospective new employer after the prospective employer files a
non-frivolous Petition for a CNMI-Only Nonimmigrant Transitional
Worker, Form I-129CW, for new employment. However, the new employer
must file the Petition for a Nonimmigrant Worker, Form I-129CW, within
a 30-day period after the date of termination. Employment authorization
then continues until DHS adjudicates the new petition.
While the commenters supported the continued employment
authorization for CW-1 nonimmigrant workers, they also offered specific
suggestions regarding various aspects of the CW-1 transitional worker
program. One commenter remarked that the continued work authorization
provision merely provides a temporary solution to meet the needs of the
local investors, and that a permanent immigration status is necessary.
The commenter encouraged the immediate passage of U.S. Senate bill S.
744 as a permanent solution to this CNMI foreign worker situation.
Another commenter suggested that foreign workers in the CNMI should be
provided with a ``better'' immigration status. The rulemaking focused
on continued employment authorization for certain CW-1s with timely
filed extension of stay requests. The CW program as a whole was not a
subject of this rulemaking. These comments are outside the scope of
this rulemaking.
DHS has determined that it will adopt this provision without
change, thereby automatically extending employment authorization to CW-
1 nonimmigrants who have timely filed, pending extension of stay
requests for the same employer. Specifically, DHS will add the CW-1
nonimmigrant classification to the list of employment-authorized
nonimmigrant classifications, at 8 CFR 274a.12(b)(20), that receive an
automatic extension of employment authorization of up to 240 days while
the employer's timely filed extension of stay requests remain pending.
This will ensure that the CW nonimmigrants are permitted continued
employment authorization based on both pending change of employers
requests and pending extension of stay requests.

E. Application Requirement for E-3 and H-1B1 Nonimmigrants Requesting
Changes of Status or Extensions of Stay

DHS only received one comment on the proposal to add principal E-3
and H-1B1 nonimmigrants to the list of nonimmigrant classifications
that must file a petition with USCIS to request an extension of stay or
change of status. The commenter stated that the proposed changes, if
adopted, will go far to enable initial and uninterrupted continued
employment of H-1B1 and E-3 nonimmigrants. The commenter added that the
changes create equity for these nonimmigrant categories as compared to
other similar nonimmigrant categories for specialty workers. For
reasons previously stated, DHS will adopt this provision without
change. Specifically, DHS will amend 8 CFR 214.1(c)(1) and 8 CFR
248.3(a) to add the E-3 and H-1B1 nonimmigrant classifications to the
list of nonimmigrant classifications that must file a petition with
USCIS to request an extension of stay or change of status. This updates
the regulations so they conform to the filing procedures described in
the form instructions.

F. Comparable Evidence for EB-1 Outstanding Professors and Researchers

DHS received a number of comments on the proposal to expand the
current list of initial evidence for EB-1 outstanding professors and
researchers to allow petitioners to submit evidence comparable to the
other forms of evidence already listed in 8 CFR 204.5(i)(3)(i).
1. Support
Most of the commenters on the EB-1 comparable evidence provision
supported it, for a variety of reasons. They cited the perceived
positive effects on the United States, the need for harmonization of
the regulations, and the need to submit evidence to allow beneficiaries
to fully document their accomplishments. DHS notes that the same
commenters remarked on more than one aspect of the comparable evidence
provision.
Specifically, commenters remarked that the change would positively
affect the United States in a variety of ways. Two commenters noted
that the comparable evidence provision would expand the number of
individuals eligible for this classification and would benefit the
United States as a whole. Some commenters noted that the comparable
evidence provision will improve the ability of U.S. employers,
especially higher education employers, to attract, recruit, and retain
talented foreign professors, researchers, and scholars. One of these
commenters added that this regulatory change will improve the
capability to recruit and retain talented individuals which conduct the
research that allows U.S. businesses to develop and sell products. This
improved capability to recruit these individuals will help the U.S.
economy's growth. Another commenter added that refining the EB-1
outstanding professors and researchers evidentiary list would benefit
the United States by boosting research, innovation, and development.
DHS appreciates the commenters' support for the comparable evidence
provision based on the perceived positive effects on United States'
competitiveness and the Nation's economy. DHS agrees with the
commenters that the proposed comparable evidence provision may also
help U.S. employers recruit EB-1 outstanding professors and
researchers.
A number of commenters supported expansion of the current list of
evidentiary criteria for EB-1 outstanding professors and researchers to
allow the submission of comparable evidence because it would harmonize
the EB-1 outstanding professor and researcher regulations with those of
other comparable employment-based immigrant classifications,
eliminating unwarranted disparities with respect to these policies.
Commenters emphasized that the proposed comparable evidence provision
in turn would bring the criteria for proving eligibility for the
outstanding professors and researchers classification in line with
those that have long been permitted for other preference categories
such as EB-1 aliens of extraordinary ability and EB-2 aliens of
exceptional ability. These commenters stated that the proposed change
is a logical extension of the existing regulatory provision listing the
evidentiary criteria for EB-1 outstanding professors and researchers,
especially since the similarly situated EB-1 extraordinary ability
classification, which requires satisfaction of a higher evidentiary
threshold, allows for consideration of comparable evidence.\12\
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\12\ The regulatory text stating when comparable evidence may be
submitted uses the term ``standards'' when referring to the list of
evidence that may be submitted to establish eligibility. See, e.g.,
8 CFR 204.5(h)(4) and 8 CFR 204.5(k)(3)(iii). Commenters, however,
commonly used the term ``criteria'' or ``criterion'' when referring
to the ``comparable evidence'' provisions and when responding to
DHS's proposal to allow petitioners to submit evidence comparable to
the other forms of evidence already listed in 8 CFR 204.5(i)(3)(i).
---------------------------------------------------------------------------

DHS appreciates commenters' support for the comparable evidence
provision based on the harmonization of the comparable regulations. DHS
agrees that by allowing for the submission of comparable evidence, DHS
will bring the evidentiary standards of the EB-1 outstanding professor
and researcher category in line with those currently available to
individuals qualifying under both the EB-1 extraordinary ability and
EB-2 exceptional ability categories. This change in turn will provide
equity for EB-1 outstanding professors and researchers with other

[[Page 2075]]

similarly situated individuals. This change better enables petitioners
to hire outstanding professors and researchers by providing a set of
standards that are flexible enough to comprehensively encompass all
evidence that may demonstrate their satisfaction of the statutory
standard. DHS notes that although it is expanding the types of evidence
that a petitioner may submit to establish eligibility, this rulemaking
does not change the petitioner's burden to establish eligibility under
the preponderance of the evidence standard of proof.
A number of commenters supported expanding the criteria for EB-1
outstanding professors and researchers because doing so would remove
evidentiary limitations and allow employers to present full
documentation of an employee's qualifications. One of these commenters
added that the language in the proposed rule was well drafted and broad
enough to include all evidence that may prove outstanding achievement.
Under current regulation, petitioners need to fit evidence into
specific evidentiary categories. For example, petitioners have
submitted funding grants as documentation of major awards under 8 CFR
204.5(i)(3)(i)(A). In other instances, petitioners may have omitted
relevant evidence that could have helped to demonstrate the beneficiary
is recognized internationally as outstanding, such as high salary and
affiliation with prestigious institutions, because they did not believe
it would fit into any of the regulatory evidentiary category.
Commenters noted that the proposed change adds necessary flexibility;
for instance, this change will now potentially allow for the submission
of important patents, grant funding and other such achievements that
may not neatly fall into the previously existing evidentiary
categories. Two of these commenters also commended DHS for recognizing
that the types of evidence relevant to the determination of eligibility
for this classification have changed greatly since these evidentiary
criteria were first created, and will continue to evolve over time due
to the changing needs of American businesses.
One of the commenters that supported the comparable evidence
provision also expressed concern regarding how USCIS considers
comparable evidence. The commenter reported that recent decisions in
other employment-based categories suggest that adjudicators allow
comparable evidence only when none of the listed criteria apply. The
commenter added that comparable evidence should be presumed acceptable,
regardless of whether any of the otherwise enumerated criteria apply,
as long as the evidence is relevant to the merits of the case. This
commenter urged DHS to clarify this approach here, as well as with
certain employment-based classifications where comparable evidence is
currently in use.
DHS appreciates the commenter's concern regarding adjudicative
trends in how USCIS considers comparable evidence. DHS regulations
provide that petitions in the EB-1 extraordinary ability and EB-2
exceptional ability classifications must establish that one or more
permissible standards are not readily applicable to the beneficiary's
occupation in order to rely on the comparable evidence provision
respective to those standards. See 8 CFR 204.5(h)(4), (k)(3)(iii).
Accordingly, if any single evidentiary standard is inapplicable to the
beneficiary's occupation, the petitioner may submit alternative, but
comparable, evidence even though other standards may be applicable to
the beneficiary's occupation.
For EB-1 outstanding professors and researchers, DHS confirms that
a petitioner will be able to submit comparable evidence instead of, or
in addition to, evidence targeted at the standards currently listed in
8 CFR 204.5(i)(3)(i) to demonstrate that the beneficiary is
internationally recognized as outstanding if the currently listed
standards do not readily apply. The intent of this provision is to
allow petitioners, in cases where evidence of the beneficiary's
achievements do not fit neatly into the enumerated list, to submit
alternate, but qualitatively comparable, evidence. Under this
provision, a petitioner may submit evidence falling within the
standards listed under 8 CFR 204.5(i)(3)(i), and may also use the
comparable evidence provision to submit additional types of comparable
evidence that is not listed, or that may not be fully encompassed, in 8
CFR 204.5(i)(3)(i). DHS notes that a petitioner's characterization of
existing standards as ``not readily applying'' to the submitted
evidence will be considered in the totality of the circumstances, but
USCIS ultimately will determine which standard is satisfied, if any, by
any form of submitted evidence.
As noted in the proposed rule, limiting submission of comparable
evidence for outstanding professors and researchers only to instances
in which the standards do not readily apply ``to the alien's
occupation'' would not adequately serve the goal of this regulatory
change because unlike the standards for EB-1 aliens of extraordinary
ability and EB-2 aliens of exceptional ability, the standards for EB-1
outstanding professors and researchers are tailored to only these two
occupations.\13\ Thus, a petitioner for an outstanding professor or
researcher does not need to establish that a particular standard is not
readily applicable ``to the beneficiary's occupation'' before they can
rely on comparable evidence. A petitioner for an outstanding professor
or researcher instead needs to establish that the evidentiary standards
listed in 8 CFR 204.5(i)(3)(i) do not readily apply to the evidence
that the petitioner proposes to submit before the petitioner can rely
on the comparable evidence provision.
---------------------------------------------------------------------------

\13\ In the proposed rule, DHS explained that the aliens of
extraordinary ability and aliens of exceptional ability
classifications encompass a broad range of occupations (sciences,
arts, education, business, or athletics for extraordinary ability
aliens; and the sciences, arts, or business for exceptional ability
aliens). See 79 FR 26870, 26880 (citing INA section 203(b)(1)(A),
(2)(A)). Employers filing petitions under such classifications may
submit comparable evidence if they can establish that the standards
listed in the regulation do not directly apply to the beneficiary's
occupation. See 8 CFR. 204.5(h)(4), (k)(3)(iii). In contrast, the
outstanding professor or researcher classification involves only two
overarching types of occupations, and generally, the current
evidentiary standards readily apply to both. Therefore, the variance
between the regulatory text of comparable evidence provision for EB-
1 outstanding professors and researchers and that provision for the
other two categories is necessary.
---------------------------------------------------------------------------

After establishing that the evidentiary standards listed in 8 CFR
204.5(i)(3)(i) does not readily apply to the evidence he or she is
submitting, the petitioner may then submit alternative, but
qualitatively comparable evidence for those standards. The existing
evidentiary standards listed in 8 CFR 204.5(i)(3)(i) serve as a roadmap
for determining, among other things, the quantity and types of evidence
that should be submitted in order for such evidence to be considered
``comparable.''
Given the overwhelming support and strong justification for the
comparable evidence provision as proposed, DHS will adopt it and amend
8 CFR 204.5(i)(3) to include a comparable evidence provision.
2. Oppose
Two commenters opposed the comparable evidence provision for
outstanding professors and researchers. One commenter indicated that
they opposed it because it will expand the number of eligible foreign
nationals competing for high-tech jobs. The commenter stated that many
engineers, computer professionals and scientists are unemployed or
under-employed and asserted that the proposed change

[[Page 2076]]

would lead to two negative effects on U.S. workers: (1) The change will
depress the wages of U.S. citizens; and (2) it will increase a sense of
job instability and in turn deter workers from speaking up for fear of
retaliation.
While the commenter did not submit data to support the wage and
instability concerns, DHS takes these comments seriously. DHS
appreciates this viewpoint and has carefully considered the potential
for any negative effects on the labor market as a result of this
rulemaking. Congress imposed a numerical limitation for the number of
EB-1 visas available annually. The annual cap on EB-1 visas generally
is set by statute at 40,000, plus any visas left over from the fourth
and fifth employment based preference categories (special immigrants
and immigrant investors) described in section 203(b)(4) and (5) of the
INA, 8 U.S.C. 1153(b)(4) and (5). In FY 14, USCIS received 3,549
petitions for EB-1 outstanding professors and researchers. DHS notes
that this provision does not expand the visa numerical limitation
beyond that set forth by Congress. Rather, DHS is simply expanding the
list of evidentiary standards so that those who may be meritorious of
classification under INA 203(b)(1)(B) can more readily demonstrate
their eligibility, consistent with similar classifications. This
provision provides greater flexibility for petitioners on what evidence
they may submit to show that the beneficiary is recognized
internationally as outstanding in the academic field specified in the
petition. It does not change any of the remaining petitioning
requirements (such as the job offer) or expand the types of individuals
who can qualify for the EB-1 classification beyond those individuals
authorized under the statute. Instead, this change better enables
petitioners to hire outstanding professors and researchers by providing
a set of standards that are flexible enough to encompass any evidence
that may demonstrate that they are recognized internationally as
outstanding.
Another commenter expressed concern regarding existing fraud and
abuse in the H-1B and EB-1 programs, stating that the government should
first focus on ways to prevent such abuse ``before passing any law to
ease the process'' for these individuals. The commenter did not provide
any data on the nature or extent of such fraud and abuse, and did not
otherwise identify a connection between the proposed rule's provisions
and past instances of fraud and abuse. DHS takes concerns regarding
fraud and abuse very seriously and has measures in place to detect and
combat fraud. Strict consequences are already in place for immigration-
related fraud and criminal activities, including inadmissibility to the
United States, mandatory detention, ineligibility for naturalization,
and removability. See, e.g., INA sections 101(f), 212(a)(2) & (a)(6),
236(c), 237(a)(1)(G) & (a)(2), 318; 8 U.S.C. 1101(f), 1182(a)(2) &
(a)(6),1226(c), 1227(a)(1)(G) & (a)(2), 1429.
Additionally, the USCIS Fraud Detection and National Security
Directorate (FDNS) currently combats fraud and abuse, including in the
H-1B and EB-1 programs, by developing and maintaining efficient and
effective anti-fraud and screening programs, leading information
sharing and collaboration activities, and supporting law enforcement
and intelligence communities. FDNS's primary mission is to determine
whether individuals or organizations filing for immigration benefits
pose a threat to national security, public safety, or the integrity of
the nation's legal immigration system. FDNS's objective is to enhance
USCIS's effectiveness and efficiency in detecting and removing known
and suspected fraud from the application process, thus promoting the
efficient processing of legitimate applications and petitions. FDNS
officers resolve background check information and other concerns that
surface during the processing of immigration benefit applications and
petitions. Resolution often requires communication with law enforcement
or intelligence agencies to make sure that the information is relevant
to the applicant or petitioner at hand and, if so, whether the
information would have an impact on eligibility for the benefit. FDNS
officers also perform checks of USCIS databases and public information,
as well as other administrative inquiries, to verify information
provided on, and in support of, applications and petitions. FDNS uses
the Fraud Detection and National Security Data System (FDNS-DS) to
identify fraud and track potential patterns.
USCIS has formed a partnership with U.S. Immigration and Customs
Enforcement (ICE), in which FDNS pursues administrative inquiries into
most application and petition fraud, while ICE conducts criminal
investigations into major fraud conspiracies. Individuals with
information regarding fraud and abuse in the immigration benefits
system are encouraged to contact FDNS at FDNS@dhs.gov or by mail at 111
Massachusetts Ave. NW., Ste. 7002, Mail Stop 2280, Washington, DC
20529-2280. DHS believes that these collective measures provide
adequate safeguards to ensure that fraud and abuse does not occur, and
that this rulemaking is unlikely to result in a significant additional
risk of fraud and abuse, because there is a lack of a connection
between the proposed rule's provisions and past instances of fraud and
abuse. Accordingly, DHS has not made any changes in response to these
comments.
3. Suggestions for Other Evidence
Six commenters suggested additional categories of evidence that DHS
should consider accepting as comparable evidence or initial evidence.
One commenter suggested that DHS accept the number of years of
experience working in a research field and an offer of employment by a
research organization or institute of higher education as comparable
evidence to the various criteria See 8 CFR 204.5(i)(3). The commenter
noted that certain researchers face hurdles in publishing
groundbreaking results and are therefore unable to obtain the scholarly
authorship, recognition, or requisite awards to meet this criterion.
The commenter suggested that permitting this evidence would help these
researchers meet the eligibility requirements for this classification.
One commenter suggested that DHS give priority to U.S. doctoral
degree holders applying as outstanding researchers or professors who
already have a tenure-track faculty position. The commenter explained
that these individuals teach and conduct research in narrowly focused
fields and are therefore not heavily cited. As a result, they are not
usually eligible for EB-1 positions because they cannot meet the
existing criterion involving ``published material in professional
publications written by others'' about the professor or researcher's
work. See 8 CFR 204.5(i)(3)(i)(C). The commenter stated that allowing
more evidence to fit the criterion will help individuals in this type
of scenario.
In general, three commenters suggested that DHS consider a U.S.
earned doctoral degree as evidence to qualify for the EB-1
classification. Their comments varied in detail and scope. One
commenter stated that DHS should grant the EB-1 classification to
individuals who obtained their doctoral degrees from U.S. schools. This
commenter did not provide any details or context to clarify this
suggestion. Another commenter suggested that DHS should allow
individuals with U.S. doctoral degrees in science, technology,
engineering and mathematics (STEM) with a related job [offer] to
qualify for the EB-1 category. DHS is unable to

[[Page 2077]]

determine whether these commenters suggested an automatic grant of the
classification based on a U.S. earned doctoral degree or if the
commenter suggested that the classification be limited only to U.S.
earned doctoral degree holders.
One of these commenters suggested that DHS expand the list of
initial evidence to include a STEM doctoral degree issued by a U.S.
accredited university, and that DHS could publish a list of U.S.
accredited universities to make the criteria more transparent. The
commenter explained that a petitioner could satisfy the proposed
criteria by submitting an ``attested copy'' \14\ of the STEM degree
certificate and an unopened transcript from the university, to mirror
the current criteria set forth for EB-2 petitions. The commenter added
that this suggestion would provide a pathway for U.S. trained doctoral
degree holders to stay in the United States, allowing the United States
to retain technical excellence and continue its leadership in
technology. The commenter also suggested that DHS could set parameters
for eligibility criteria based on salary, and that a petitioner could
satisfy this requirement by submitting occupational employment
statistics from the Bureau of Labor Statistics (BLS). The commenter
suggested that eligible EB-1 workers should have wages that are greater
than the 75th percentile of the BLS wage figures for their occupation,
such that beneficiaries making greater than $100,000 a year would
satisfy the criteria, a requirement the commenter believes would mirror
the current criteria set forth for EB-1, Aliens of Extraordinary
Ability.\15\ The commenter believes this suggestion would alleviate any
concerns regarding financial exploitation of the immigrant worker and
the protection of domestic workers' wage rights.
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\14\ The commenter references the evidentiary requirements for
the EB-2, Members of Professions Holding Advanced Degrees or Aliens
of Exceptional Ability. The relevant provision at 8 CFR
204.5(k)(3)(i)(A) requires an ``official academic record showing
that the alien has a United States advanced degree or a foreign
equivalent degree.'' Therefore, in this context, DHS infers that
``attested copy'' is a reference to ``an official academic record.''
\15\ The commenter references the evidentiary requirements for
the EB-1, Aliens of Extraordinary Ability. The relevant provision at
8 CFR 204.5(h)(3)(ix) requires ``evidence that the alien has
commanded a high salary or other high remuneration for services, in
relation to others in the field.'' In contrast, the evidentiary
requirements for the EB-1, Outstanding Professors and Researchers,
at 8 CFR 204.5(i)(3) does not contain a high salary criterion. DHS
may consider any evidence submitted in the totality of the
circumstances to determine whether an individual is internationally
recognized as an outstanding professor or researcher.
---------------------------------------------------------------------------

DHS carefully considered the commenters' suggestions for initial
and additional evidence for the EB-1 outstanding professors and
researchers classification. DHS believes that the evidence suggested in
the comments above regarding minimum number of years of experience and
minimum education requirements generally would not be beneficial in an
analysis of whether an individual is internationally recognized as
outstanding in his or her academic field. The purpose of the proposed
comparable evidence provision is to allow petitioners to present
evidence that, although not on the enumerated list, may still serve to
demonstrate that the professor or researcher is internationally
recognized as outstanding. DHS appreciates that to achieve this goal,
the standards listed in 8 CFR 204.5(i)(3)(i) need to have some measure
of flexibility so they may continue to evolve over time in response to
U.S. business needs and/or the changing nature of certain work
environments or practices. It is not clear, however, whether the
commenters' suggestions regarding minimum number of years of
experience, minimum education requirements, and salary requirements are
intended to limit or expand the current evidentiary criteria for EB-1
outstanding professors or researchers. If they were intended to limit
the criteria, then the commenters' suggestions would have the effect of
narrowing the eligibility criteria by requiring very specific evidence
that is possessed by a specific subset of the potential population of
outstanding professors and researchers. In direct contrast, the
intended purpose of the comparable evidence provision is to provide
flexibility for this population. If the commenter's suggestions,
however, were intended to expand the type of evidence that may be
considered, that suggestion is consistent with the purpose of the
comparable evidence provision as it provides needed flexibility to
establish eligibility. Therefore, DHS declines to adopt these
suggestions as amendments to the standards listed in 8 CFR
204.5(i)(3)(i) in favor of a broad comparable evidence provision.\16\
---------------------------------------------------------------------------

\16\ Although DHS will not amend the regulations to add these
very specific suggestions, please note that the comparable evidence
provision is sufficiently broad to permit consideration of the
evidence described in the comments, so long as the previously
described requirements of the provision are satisfied.
---------------------------------------------------------------------------

One commenter expressed concern that adding the proposed comparable
evidence provision will not improve the probability that an outstanding
professor and researcher will qualify for the classification. The
commenter explained that adjudicators analyze this classification under
a two-part analysis, and therefore meeting the criteria is not enough
to prove eligibility. Instead, the commenter suggested that DHS impose
a point- based system as an alternative, transparent method for
evaluating whether these individuals are eligible for the
classification. The commenter added that this would eliminate any
subjectivity in the process and allow a researcher or petitioner to
predict whether he or she meets or does not meet the criteria.
DHS disagrees with the commenter's assertion that the proposed
comparable evidence provision will not benefit petitioners and these
specific foreign workers. The stated purpose of the proposed comparable
evidence provision is to allow petitioners to submit additional types
of evidence and to fully document the beneficiary's international
recognition as an outstanding professor or researcher in order to
demonstrate eligibility for the requested classification. However, this
proposal does not change the eligibility standard for this
classification. The petitioner must still demonstrate, by a
preponderance of the evidence, that the beneficiary is recognized
internationally as outstanding in the specific academic area.
The commenter correctly asserted that adjudicators analyze this
classification using a two-part approach. The USCIS policy memo,
Evaluation of Evidentiary Criteria in Certain I-140 Petitions, provides
instructions to adjudicators regarding application of a two-step
analysis for purposes of adjudicating extraordinary ability,
outstanding professor and researcher, and exceptional ability Form I-
140 petitions.\17\ The commenter stated that given this two-step
analysis, a beneficiary may satisfy at least two of the outstanding
professor and researcher regulatory standards but fail to prove
eligibility. DHS believes that whether or not a beneficiary ultimately
may prove eligibility by providing evidence satisfying at least two of
the listed regulatory criteria is not a material question in
considering whether to add this comparable evidence provision. Instead,
by allowing submission and

[[Page 2078]]

consideration of comparable evidence, which does not exist under
current regulation, this rule promises to offer petitioners a more
meaningful opportunity to establish a beneficiary's eligibility. Thus,
although DHS recognizes that satisfaction of the newly added provision
will not guarantee approval for the classification, if petitioners
submit evidence that indeed is comparable and points to international
recognition for being outstanding in the field, that evidence may
improve the probability that the petition will be approved under the
existing framework.
---------------------------------------------------------------------------

\17\ See USCIS Policy Memorandum, ``Evaluation of Evidence
Submitted with Certain Form I-140 Petitions; Revisions to the
Adjudicator's Field Manual (AFM) Chapter 22.2, AFM Update AD11-14''
(Dec. 22, 2010), available at http://www.uscis.gov/USCIS/Laws/Memo...6002-005-1.pdf.
---------------------------------------------------------------------------

DHS appreciates the suggestion for an alternative framework for
analysis of the EB-1 outstanding professors and researchers
classification, but DHS declines to adopt the suggested point-based
system as it would require a much broader reshaping of the current
immigration system. This suggestion would require a wholesale
rulemaking for all the other classifications, which is beyond the scope
of this rulemaking.
DHS declines to adopt the suggestions for initial evidence,
additional evidence, and an alternative framework. As previously noted,
DHS is tailoring this regulation to provide EB-1 outstanding professors
and researchers with a comparable evidence provision that mirrors the
other employment-based immigrant categories that already allow for
submission of comparable evidence.

G. Miscellaneous Comments

One commenter requested clarification as to whether the changes
proposed in this rule would affect processing times for family
immigration. The commenter did not state which aspects of the proposed
changes he or she believes could impact family immigration processing
times. While there is always a possibility that changes to one USCIS
business process may trigger unanticipated downstream effects on other
USCIS business processes, DHS does not anticipate that changes made by
this rule will have a direct impact on family based immigration
processing times.
Another commenter supported DHS's replacement of the more narrow
term ``employer'' with the more general term ``petitioner'' in
reference to who may file a request to change or extend status under 8
CFR 214.1(c)(1) and 248.3(a). The commenter explained that the term
``employer'' does not adequately describe the array of individuals and
entities that may file petitions under 8 CFR 214.2 and the term
``petitioner'' is a much more accurate descriptor. DHS agrees that the
term ``petitioner'' is a more accurate depiction of the individual who
may file in a variety of scenarios. Additionally, this change will
generally eliminate inconsistency between the change of status and
extension of stay provisions and the classification-specific provisions
in 8 CFR 214.2. This change will eliminate any confusion that the
current inconsistency between these provisions may have caused. DHS
will adopt this provision without change.

IV. Statutory and Regulatory Requirements

A. Executive Orders 12866 and 13563

Executive Orders 12866 and 13563 direct agencies to assess the
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, reducing costs, harmonizing rules, and promoting flexibility.
This rule has not been designated a ``significant regulatory action,''
under section 3(f) of Executive Order 12866. Accordingly, the rule has
not been reviewed by the Office of Management and Budget (OMB).
This analysis updates the estimated costs and benefits discussed in
the proposed rule. This final rule will not impose any additional
compliance costs on employers, individuals, or government entities, and
will not require additional funding for the Federal Government.
However, DHS notes that there could be additional familiarization costs
as employers read the final rule in the Federal Register to understand
the benefits that this rule will provide. Also, USCIS may spend a de
minimis amount of time updating training materials, but USCIS does not
expect to hire additional personnel as a result of this rule. The final
rule will make certain changes to the regulations governing the E-3, H-
1B1, and CW-1 nonimmigrant worker classifications. Specifically, DHS
will amend the regulation to allow principal E-3, H-1B1, and CW-1
nonimmigrant workers up to 240 days of continued work authorization
beyond the expiration date noted on their Arrival Departure Record,
Form I-94, provided that their extension of stay request is timely
filed. Employers or petitioners are already required to submit an
extension of stay for such nonimmigrant classifications in order to
extend their status beyond the expiration date noted on their Arrival
Departure Record, Form I-94. Permitting continued employment while the
extension of stay request is pending with USCIS places principal E-3,
H-1B1, and CW-1 nonimmigrant workers on par with other, similarly
situated nonimmigrants. The provisions will not result in any
additional compliance costs, burdens, or procedures for the U.S.
employer or the workers.
Additionally, DHS will allow petitioners of EB-1 outstanding
professors and researchers to submit comparable evidence, instead of or
in addition to the evidence listed in 8 CFR 204.5(i)(3)(i), to
demonstrate that the professor or researcher is recognized
internationally as outstanding in his or her academic field. Allowing
comparable evidence for EB-1 outstanding professors and researchers
will match the evidentiary requirements with those of similarly
situated employment-based immigrant classifications.
DHS notes that the above-referenced changes are part of DHS's
Retrospective Review Plan for Existing Regulations under Executive
Order 13563.\18\ During the development of DHS's Retrospective Review
Plan for Existing Regulations in 2011, DHS received one comment in
response to the 2011 publication.\19\ DHS received more comments again
in response to the 2014 publication. These public comments requested
specific changes to the DHS regulations that govern continued work
authorization for principal E-3 and H-1B1 nonimmigrants when an
extension of status petition is timely filed, and requested that DHS
expand the types of evidence allowable in support of immigrant
petitions for outstanding researchers or professors. This rule responds
to these comments according to the retrospective review principles of
Executive Order 13563.
---------------------------------------------------------------------------

\18\ See U.S. Department of Homeland Security Retrospective
Review of Existing Regulations--Progress Report (Feb. 2015),
available at http://www.dhs.gov/publication/febru...ew-plan-report for the latest published update on
DHS actions with respect to Retrospective Review.
\19\ See Letter from Marlene M. Johnson, Executive Director and
CEO of NAFSA: Association of International Educators, to Ivan K.
Fong, General Counsel, DHS (Apr. 13, 2011), available at http://www.nafsa.org/uploadedFiles/D...1%20public.pdf.
---------------------------------------------------------------------------

The costs and benefits of the final rule are summarized in Table 2.

[[Page 2079]]



Table 2--Summary of Costs and Benefits
------------------------------------------------------------------------
Benefits and
Costs Change Avoided Costs
------------------------------------------------------------------------
E3, H-1B1, and CW-1 Nonimmigrants
------------------------------------------------------------------------
Minimal costs associated with Continued Avoided cost of
reading the rule to understand employment lost productivity
the benefits that will accrue authorization of for U.S.
to employers and workers. This up to 240 days employers of
rule does not impose any for an H-1B1, principal E-3, H-
additional compliance costs. principal E-3, or 1B1, and CW-1
CW-1 nonimmigrant nonimmigrant
worker while a workers. Not
timely filed quantified.
extension of stay Would provide
petition is equity for
pending. principal E-3 and
H-1B1
nonimmigrants
relative to other
employment-based
nonimmigrants
listed in 8 CFR
274a.12.(b)(20)
and provides
equity for CW-1
nonimmigrant
workers whose
extension is
filed by the same
employer, similar
to other CW-1
nonimmigrant
workers who
change employers.
Qualitative
benefit.
Clarify that Ensures the
principal E-3 and regulations are
H-1B1 consistent with
nonimmigrants are statutory
work authorized authority and
incident to codifies current
status, and practice.
specify current
filing procedures
for requesting
change of status
or extension of
stay.
---------------------------------------
EB-1 Outstanding Professor and
Researcher Classification
---------------------------------------
Allow the use of May help U.S.
comparable employers recruit
evidence to that EB-1 outstanding
listed in 8 CFR professors and
204.5(i)(3)(i)(A) researchers for
-(F) to establish U.S. employers.
that the EB-1 Not quantified.
professor or Would provide
researcher is equity for EB-1
recognized outstanding
internationally professors and
as outstanding in researchers
his or her relative to
academic field. certain
employment-based
immigrants listed
in 8 CFR 204.5.
Qualitative
benefit.
------------------------------------------------------------------------

A summary of the classification types affected by this final rule
is shown in Table 3.

Table 3--Summary of Affected Visa Types
----------------------------------------------------------------------------------------------------------------
Beneficiary Immigration Maximum duration Annual
Visa type restrictions status of stay limitations
----------------------------------------------------------------------------------------------------------------
E-3............................. Nationals of Nonimmigrant 2 years, 10,500 \20\.
Australia. (temporary potentially
employment). indefinite
extensions.
H-1B1........................... Nationals of Chile Nonimmigrant 1 year, 1,400 for Chilean
or Singapore. (temporary potentially nationals; 5,400
employment). indefinite for Singaporean
extensions. nationals.
CW-1............................ Limited to workers Nonimmigrant 1 year, extensions Maximum of 12,999
in the CNMI (temporary available through in fiscal year
during the employment during December 31, 2019. (FY) 2016.
transition to transition
U.S. Federal period).
immigration
regulations.
EB-1 outstanding professor and Professors and Immigrant None.............. Apportioned from
researcher. researchers (any (permanent the approximate
nationality) who residence and 40,040 generally
are recognized employment). available
internationally annually to first
as outstanding in preference
their academic employment-based
area. immigrant visas.
----------------------------------------------------------------------------------------------------------------

1. E-3 and H-1B1 Nonimmigrant Workers
Under current regulations, if employers of E-3 or H-1B1
nonimmigrants want to ensure continued employment authorization
throughout the period that the extension request is pending, they
generally must file a petition requesting the extension of the
individual employee's stay well before the initial authorized period of
stay expires. The Petition for a Nonimmigrant Worker, Form I-129, is
used to request extensions of stay for these nonimmigrant workers.
Currently, the petitioner may file a request for

[[Page 2080]]

extension of stay as early as 6 months before the authorized period of
stay expires. As of December 31, 2014, the average processing time for
USCIS to adjudicate these extension requests is 2 months.\21\ However,
if the principal E-3 or H-1B1 nonimmigrant worker's authorized period
of stay expires before USCIS grants the extension request, the worker
cannot continue to work while his or her extension request remains
pending.
---------------------------------------------------------------------------

\20\ In accordance with INA section 214(g)(11)(C), this limit
only applies to principal E-3s and does not extend to spouses or
children of the principal alien.
\21\ See USCIS Processing Time Information, available at https://egov.uscis.gov/cris/processTimesDisplayInit.do. The USCIS
California Service Center and Vermont Service Center adjudicate
Petition for a Nonimmigrant Worker, Form I-129, extension of stay
requests for E and H-1B nonimmigrants.
---------------------------------------------------------------------------

In this rule, DHS amends its regulations to permit principal E-3
and H-1B1 nonimmigrants to continue their employment with the same
employer for up to 240 days after their authorized period of stay
expires (as specified on their Arrival-Departure Record, Form I-94)
while requests for extension of stay on their behalf are pending. To
obtain authorization to continue employment for up to 240 days,
employers or petitioners must timely file the Petition for Nonimmigrant
Worker, Form I-129. Since employers are already required to file the
Petition for Nonimmigrant Worker, Form I-129, in order to request an
extension of stay on behalf of the nonimmigrant worker, there are no
additional filing requirements or costs for employers or petitioners to
comply with in this final rule. DHS notes there are minimal
familiarization costs to employers associated with reading the rule in
the Federal Register to understand the benefits of the rule. The
benefits of the final rule will be to provide equity for principal E-3
and H-1B1 nonimmigrants relative to other employment-based
nonimmigrants listed in 8 CFR 274a.12.(b)(20). Additionally, this
provision may allow employers of principal E-3 and H-1B1 nonimmigrant
workers to avoid the cost of lost productivity that results from
interruptions of work while an extension of stay request is pending.
Table 4 shows that USCIS received a total of 5,294 extension of
stay requests for H-1B1 and principal E-3 nonimmigrant workers in the
FYs from 2010 through 2014 (an average of 1,059 requests per year).
USCIS approved 4,026 extensions of stay requests in the same period (an
average of 805 per year). Extension of stay requests received and
petition approvals are not meant for direct comparison because USCIS
may receive a petition in one year but make a decision on it in another
year.

Table 4--Petition for Nonimmigrant Worker, Form I-129 Filed for an Extension of Status for E-3 and H-1B1 Nonimmigrants
--------------------------------------------------------------------------------------------------------------------------------------------------------
Petitions received Petitions approved
FY -----------------------------------------------------------------------------------------------
H-1B1 E-3 Total H-1B1 E-3 Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
2010.................................................... 444 624 1,068 185 571 756
2011.................................................... 438 555 993 220 410 630
2012.................................................... 489 563 1,052 180 380 560
2013.................................................... 417 590 1,007 411 622 1,033
2014.................................................... 441 733 1,174 447 600 1,047
-----------------------------------------------------------------------------------------------
Total............................................... 2,229 3,065 5,294 1,443 2,583 4,026
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: Data provided by USCIS Office of Performance and Quality (OPQ), January 2015.

USCIS does not have an estimate of either: (a) the number of cases
where principal E-3 and H-1B1 nonimmigrants are unable to continue
employment with their employer because their employer's timely petition
for an extension of stay was not adjudicated before their authorized
period of stay expired, or (b) how long principal E-3 and H-1B1
nonimmigrants were unable to work when their employer's timely petition
for an extension of stay was not adjudicated before their authorized
period of stay expired.\22\ Because of this data limitation, we are
unable to quantify the total aggregate estimated benefits of this
provision of the rule. The rule, however, will benefit U.S. employers
to the extent that this rule allows U.S. employers to avoid
interruptions in productivity that could result if the timely extension
of stay is not adjudicated before the authorized period of stay
expires, as noted on the nonimmigrant worker's Arrival Departure
Record, Form I-94. Unfortunately, DHS did not receive statistics or
data from impacted stakeholders that permit us to quantitatively
estimate the benefits of this rule.
---------------------------------------------------------------------------

\22\ USCIS acknowledges that in part 3 of the Petition for a
Nonimmigrant Worker, Form I-129, information is collected about the
beneficiary that is currently in the United States. While this
information is collected and considered for the purposes of
adjudicating the petition, this information is not captured in a
database.
---------------------------------------------------------------------------

In addition, DHS is amending the regulations to codify current
practices. Specifically, DHS is amending 8 CFR 274a.12(b) to clarify in
the regulations that the principal E-3 and H-1B1 nonimmigrant
classifications are employment authorized incident to status with a
specific employer. DHS is also amending 8 CFR 214.1(c)(1) and 8 CFR
248.3(a) to add the principal E-3 and H-1B1 nonimmigrant
classifications to the list of nonimmigrant classifications that must
file a petition with USCIS to make an extension of stay or change of
status request. Again, both of these regulatory clarifications are
consistent with current practice.
2. CW-1 Nonimmigrant Workers
This provision of the final rule will apply to the CW-1
classification, which is issued solely to nonimmigrant workers in the
CNMI. The CW-1 nonimmigrant visa classification was created to allow
certain workers who are otherwise ineligible for any other nonimmigrant
visa classification under the INA to work in the CNMI during the
transition period to the U.S. Federal immigration system. This
transition period was set to end on December 31, 2014. On June 3, 2014,
the U.S. Secretary of Labor exercised statutory responsibility and
authority by extending the CW transitional worker program for an
additional 5 years, through December 31, 2019.\23\
---------------------------------------------------------------------------

\23\ See Secretary of Labor Extends the Transition Period of the
Commonwealth of the Northern Mariana Islands-Only Transitional
Worker Program, 79 FR 31988 (June 3, 2014).
---------------------------------------------------------------------------

CW-1 nonimmigrant workers may be initially admitted to the CNMI for
a

[[Page 2081]]

period of 1 year, and USCIS may grant extensions in 1-year increments
until the end of the transition period. The CW-1 nonimmigrant visa
classification is valid only in the CNMI and does not require any
certification from the DOL.
DHS has determined that current regulations contain an
inconsistency. While current regulations provide continued work
authorization for CW-1 nonimmigrant workers while petitions for a
change of employers are pending and for certain beneficiaries of
initial CW transitional worker petitions filed on or before November
27, 2011, continued work authorization is not currently provided for
CW-1 nonimmigrant workers requesting extensions of stay with the same
employer. This inconsistency in the regulations may create an incentive
for CW-1 nonimmigrant workers to change employers, as they would have
the advantage of uninterrupted work authorization.
DHS is revising the regulations to allow for equitable treatment of
CW-1 nonimmigrant workers who remain with the same employer by
extending continued employment authorization for up to 240 days while a
timely filed, pending request for an extension of stay with the same
employer is being adjudicated. As with the similar proposal in this
rule regarding H-1B1 and principal E-3 nonimmigrants, current employers
of CW-1 nonimmigrant workers may also avoid productivity losses that
could occur if a CW-1 nonimmigrant worker cannot continue employment
while the timely filed extension request is pending.
The CW-1 nonimmigrant classification is temporary. DHS has
established numerical limitations on the number of CW-1 nonimmigrant
classifications that may be granted (see Table 5). The numerical
limitations apply to both initial petitions and extension of stay
requests, including change of employer petitions, in a given FY. DHS
has set the numerical limitation for CW-1 nonimmigrant workers at
12,999 for FY 2016.\24\
---------------------------------------------------------------------------

\24\ See Commonwealth of the Northern Mariana Islands (CNMI)-
Only Transitional Worker Numerical Limitation for Fiscal Year 2016,
80 FR 63911 (Oct. 22, 2015). On June 3, 2014, the Secretary of Labor
exercised statutory responsibility and authority by extending the CW
transitional worker program for an additional 5 years, through
December 31, 2019. See Secretary of Labor Extends the Transition
Period of the Commonwealth of the Northern Mariana Islands-Only
Transitional Worker Program, 79 FR 31988 (June 3, 2014).
Source: FYs 2011 and 2012, 8 CFR 214(w)(viii). FY 2013, Federal
Register volume 77, no. 231, page 71287. FY 2014, Federal Register
volume 78, no. 186, page 58867. FY 2015 Federal Register volume 79,
no. 188, page 58241. FY 2016 Federal Register volume 80, no. 204,
page 63911.

Table 5--Numerical Limitations of CW-1 Classifications
------------------------------------------------------------------------
FY Numerical Limit
------------------------------------------------------------------------
2011................................................. 22,417
2012................................................. 22,416
2013................................................. 15,000
2014................................................. 14,000
2015................................................. 13,999
2016................................................. 12,999
------------------------------------------------------------------------

DHS set the numerical limit of CW-1 nonimmigrant workers at 14,000
for FY 2014 and petitioning employers filed initial petitions for 1,133
beneficiaries; extension of stay requests from the same employer for
8,952 beneficiaries; and extension of stay requests from new employers
for an additional 1,298 beneficiaries.\25\ The population affected by
this provision of the final rule will be those CW-1 nonimmigrant
workers whose subsequent extensions of stay requests are filed by the
same employer. Accordingly, if this proposal were in place in FY 2014,
all of the 8,952 CW-1 nonimmigrant workers with extension of stay
requests with the same employer would have received the continued 240-
day employment authorization, if necessary, generally putting these
workers on par with CW-1 nonimmigrant workers with extension of stay
requests for new employers.
---------------------------------------------------------------------------

\25\ Source: USCIS Office of Performance and Quality, January,
2015.
---------------------------------------------------------------------------

This provision will not impose any additional costs on any
petitioning employer or for CW-1 nonimmigrant workers. The benefits of
this final rule will be that DHS will treat CW-1 nonimmigrant workers
whose extension of stay request is timely filed by the same employer
similar relative to other CW-1 nonimmigrant workers whose request is
timely filed by a new employer. Additionally, this provision will
mitigate any potential distortion in the labor market for employers of
CW-1 nonimmigrant workers created by the differing provisions for
retained workers versus provisions for workers changing employers and
prevent a potential loss of productivity for current employers. Under
current law, these benefits would be limited in duration, as the
transition period in which CW-1 nonimmigrant worker classifications are
issued is now scheduled to end on December 31, 2019. Unfortunately,
USCIS does not have data to permit a quantitative estimation of the
benefits \26\ of this provision. Additionally, DHS did not receive data
or additional information from impacted stakeholders that would permit
DHS to quantitatively estimate the benefits of this rule as it relates
to CW-1 nonimmigrant workers in the CNMI. DHS believes, however, that
the inconsistent treatment of employment authorization for CW-1
nonimmigrant workers could have created hardships to the CNMI labor
force.\27\
---------------------------------------------------------------------------

\26\ The aggregate value of benefits would depend on several
non-quantifiable factors including: the number of CW-1 workers
prompted to change employment because of the automatic extension
versus those changing for reasons of promotion and advancement or
termination by their previous employer.
\27\ See Joint letter to the Director, USCIS, from the Saipan
Chamber of Commerce, the Hotel Association of the Northern Mariana
Islands and the Society for Human Resource Management CNMI (Dec. 20,
2012).
---------------------------------------------------------------------------

3. EB-1 Outstanding Professors and Researchers
For the EB-1 outstanding professor and researcher immigrant
classification, under current regulations, a petitioner must submit
initial evidence to demonstrate that the beneficiary is recognized
internationally as outstanding in his or her specific academic field.
The type of evidence that is required is outlined in 8 CFR 204.5(i)(3).
To demonstrate that the EB-1 professor or researcher is recognized
internationally as outstanding in his or her academic field, DHS,
through this rulemaking, is allowing petitioners to substitute
comparable evidence (examples might include award of important patents
and prestigious, peer-reviewed funding or grants) for the evidence
listed in 8 CFR 204.5(i)(3)(i)(A)--(F). See 8 CFR 204.5(i)(3)(ii). The
other requirements remain unchanged. DHS made this change in response
to stakeholder concerns that the current evidentiary list is dated and
may not allow the beneficiary to present the full documentation of
their achievements.\28\
---------------------------------------------------------------------------

\28\ See Letter from Marlene M. Johnson, Executive Director and
CEO of NAFSA: Association of International Educators, to Ivan K.
Fong, General Counsel, DHS (Apr. 13, 2011), available at http://www.nafsa.org/uploadedFiles/D...1%20public.pdf.
---------------------------------------------------------------------------

By allowing for comparable evidence, DHS will harmonize the
evidentiary requirements of the EB-1 outstanding professor and
researcher category with those currently available to the EB-1
extraordinary ability category as well as the EB-2 category for a
person of exceptional ability.
This provision of the final rule will not create additional costs
for any petitioning employer or for the EB-1 outstanding professor and
researcher classification. The benefits of this provision are
qualitative, as it will treat EB-1 outstanding professors and
researchers the same as certain other individuals who seek similar

[[Page 2082]]

employment-based immigrant status under 8 CFR 204.5. Because of the
expanded types of evidence that could be used to support an EB-1
petition for outstanding professors and researchers, qualified U.S.
employers may find it easier to recruit EB-1 outstanding professors and
researchers due to this provision. Recruitment may provide EB-1
outstanding professors or researchers with additional opportunities to
contribute to his or her employer and field, furthering his or her
international recognition.
As shown in Table 6, over the past 10 FY(s), USCIS approved an
average of 93.23 percent of EB-1 petitions for outstanding professors
and researchers under the current evidentiary standards. USCIS does not
have data to indicate which, if any, of the 2,379 petitions that were
not approved from FY 2005 through FY 2014 would have been approved
under the proposed evidentiary standards. Furthermore, we are not able
to estimate whether the proposed evidentiary standards would alter the
demand for EB-1 outstanding professors and researchers by U.S.
employers. Because of this data limitation, the further quantification
of this benefit is not possible.

Table 6--Immigrant Petition for Alien Worker (I-140) With Outstanding Professor or Researcher Preference
Receipts and Completions, FY 2005-2014
----------------------------------------------------------------------------------------------------------------
FY Receipts \29\ Approved \30\ Denied Percent approved
----------------------------------------------------------------------------------------------------------------
2005............................ 3,089 5,455 391 93.31
2006............................ 3,111 3,139 165 95.01
2007............................ 3,560 2,540 300 89.44
2008............................ 2,648 2,223 187 92.24
2009............................ 3,209 3,991 309 92.81
2010............................ 3,522 3,199 332 90.60
2011............................ 3,187 3,090 218 93.41
2012............................ 3,112 3,223 194 94.32
2013............................ 3,350 3,180 147 95.58
2014............................ 3,549 3,357 136 95.58
-------------------------------------------------------------------------------
Total....................... 32,337 33,397 2,379 10-Yr Avg: 93.23%
----------------------------------------------------------------------------------------------------------------
Source: Data provided by USCIS Office of Performance and Quality (OPQ), January 2015.

DHS welcomed public comments from impacted stakeholders, such as
employers or prospective employers of an EB-1 outstanding professor or
researcher, providing information or data that would enable DHS to
calculate the resulting benefits of this provision. DHS did not receive
any data on this request that would allow DHS to calculate quantitative
benefits of this regulatory change. As indicated earlier in the
preamble, DHS did receive comments suggesting that this change will
benefit both U.S. employers that are petitioning for outstanding
professors and researchers, and the individuals seeking immigration
status under this classification.
---------------------------------------------------------------------------

\29\ Receipts are those filed within the FY indicated and
include petitions from new arrivals and those that are seeking to
adjust status.
\30\ Approved and denied petitions may have been receipted in a
previous FY.
---------------------------------------------------------------------------

B. Regulatory Flexibility Act

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996, Public Law 104-121 (March 29, 1996), requires Federal agencies to
consider the potential impact of regulations on small entities while
they are developing the rules. The term ``small entities'' comprises
small businesses, not-for-profit organizations that are independently
owned and operated and are not dominant in their fields, and
governmental jurisdictions with populations of less than 50,000. This
final rule revises regulations to allow for additional flexibilities;
harmonizes the conditions of employment of principal E-3, H-1B1, and
CW-1 nonimmigrant workers with other, similarly situated nonimmigrant
categories; and harmonizes the allowance of comparable evidence for EB-
1 outstanding professors and researchers with evidentiary requirements
of other similar employment-based immigrant categories. As discussed
previously, DHS does not anticipate that the additional provisions will
result in additional compliance costs for impacted U.S. employers,
including any small entities, other than the minimal costs associated
with reading and becoming familiar with benefits offered by the rule.
As discussed extensively in the regulatory assessment for Executive
Orders 12866 and 13563 and elsewhere throughout the preamble, this
final rule does not impose any additional compliance costs on U.S.
employers. U.S. employers must continue filing extension of stay
requests with DHS to extend the period of authorized stay of E-3, H-
1B1, and CW-1 nonimmigrant employees, as is currently required. This
final rule, however, will allow for a continued period of authorized
employment for the nonimmigrant worker who is the beneficiary of this
petition, provided that the petition is timely filed. This will provide
increased flexibilities for the U.S. petitioning employers without
imposing any additional costs or compliance procedures.
Based on the foregoing, DHS certifies that this rule will not have
a significant economic impact on a substantial number of small
entities.

C. Unfunded Mandates Reform Act of 1995

This final rule will not result in the expenditure by State, local
and tribal governments, in the aggregate, or by the private sector, of
$100 million or more in any 1 year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.

D. Small Business Regulatory Enforcement Fairness Act of 1996

This final rule is not a major rule as defined by section 804 of
the Small Business Regulatory Enforcement Act of 1996. This rule will
not result in an annual effect on the economy of $100 million or more;
a major increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.

[[Page 2083]]

E. Executive Order 13132

This rule will not have substantial direct effects on the States,
on the relationship between the Federal Government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with section 6 of
Executive Order 13132, it is determined that this rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.

F. Executive Order 12988

This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988.

G. Paperwork Reduction Act

Under the Paperwork Reduction Act (PRA) of 1995, Public Law 104-13,
agencies are required to submit to the Office of Management and Budget
(OMB), for review and approval, any reporting requirements inherent in
a rule. See 44 U.S.C. 3506.
The information collection requirement contained in this rule,
Immigrant Petition for Alien Worker, Form I-140, has been previously
approved for use by OMB under the PRA. The OMB control number for the
information collection is 1615-0015.
This final rule requires a revision to the Immigrant Petition for
Alien Worker, Form I-140, instructions to expand the current list of
evidentiary standards to include comparable evidence so that U.S.
employers petitioning for an EB-1 outstanding professor or researcher
may be aware that they may submit additional or alternative
documentation demonstrating the beneficiary's achievements if the
evidence otherwise described in 8 CFR 204.5(i)(3)(i) does not readily
apply. Specifically, DHS is adding a new paragraph ``b'' under the
``Initial Evidence'' section of the form instructions, to specify that
employers filing for an outstanding professor or researcher may submit
comparable evidence to establish the foreign national's eligibility if
the listed standards under 8 CFR 204.5(i)(3)(i) do not readily apply.
DHS is also providing minor clarifying language updates to the form
instructions to maintain parity among USCIS forms. DHS has submitted
the revised information collection request (ICR) to OMB for review, and
OMB has conducted a preliminary review under 5 CFR 1320.11.
DHS has considered the public comments received in response to EB-1
provision in the proposed rule, Enhancing Opportunities for H-1B1, CW-
1, and E-3 Nonimmigrants and EB-1 Immigrants, published in the Federal
Register at 79 FR 26870 on May 12, 2014. DHS's responses to these
comments appear under Part III.F of this final rule.
DHS did not receive comments related to the Immigrant Petition for
Alien Workers, Form I-140, revisions. As a result, DHS will not submit
any further changes to the information collection.
USCIS has submitted the supporting statement to OMB as part of its
request for approval of this revised information collection instrument.
There is no change in the estimated annual burden hours initially
reported in the proposed rule. Based on a technical and procedural
update required in the ICRs for all USCIS forms, USCIS has newly
accounted for estimates for existing out-of-pocket costs that
respondents may incur to obtain tax, financial, or business records,
and/or other evidentiary documentation depending on the specific
employment-based immigrant visa classifications requested on the
Immigrant Petition for Alien Worker, Form I-140. This change in the ICR
is a technical and procedural update and is not a result of any change
related to this final rule.

Regulatory Amendments

List of Subjects

8 CFR Part 204

Administrative practice and procedure, Immigration, Reporting and
recordkeeping requirements.

8 CFR Part 214

Administrative practice and procedure, Aliens, Cultural exchange
programs, Employment, Foreign officials, Health professions, Reporting
and recordkeeping, Students.

8 CFR Part 248

Aliens, Reporting and recordkeeping requirements.

8 CFR Part 274a

Administrative practice and procedure, Aliens, Employment,
Penalties, Reporting and recordkeeping requirements.

Accordingly, chapter I of title 8 of the Code of Federal
Regulations is amended as follows:

PART 204--IMMIGRANT PETITIONS

0
1. The authority citation for part 204 continues to read as follows:

Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1182, 1184,
1186a, 1255, 1641; 8 CFR part 2.

0
2. Section 204.5 is amended by redesignating paragraphs (i)(3)(ii) and
(iii) as paragraphs (i)(3)(iii) and (iv), respectively, and adding a
new paragraph (i)(3)(ii) to read as follows:


Sec. 204.5 Petitions for employment-based immigrants.

* * * * *
(i) * * *
(3) * * *
(ii) If the standards in paragraph (i)(3)(i) of this section do not
readily apply, the petitioner may submit comparable evidence to
establish the beneficiary's eligibility.
* * * * *

PART 214-NONIMMIGRANT CLASSES

0
3. The authority citation for part 214 is revised to read as follows:

Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1186a, 1187,
1221, 1281, 1282, 1301-1305 and 1372; sec. 643, Public Law 104-208,
110 Stat. 3009-708; Public Law 106-386, 114 Stat. 1477-1480; section
141 of the Compacts of Free Association with the Federated States of
Micronesia and the Republic of the Marshall Islands, and with the
Government of Palau, 48 U.S.C. 1901 note, and 1931 note,
respectively; 8 CFR part 2.
0
4. Section 214.1 is amended in paragraph (c)(1) by:
0
a. Revising the paragraph heading; and
0
b. Removing the first and second sentences, and adding one sentence in
their place.
The revision and addition read as follows:


Sec. 214.1 Requirements for admission, extension, and maintenance of
status.

* * * * *
(c) * * *
(1) Extension of stay for certain employment-based nonimmigrant
workers. A petitioner seeking the services of an E-1, E-2, E-3, H-1B,
H-1B1, 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 apply for an
extension of stay on the form designated by USCIS, with the fee
prescribed in 8 CFR 103.7(b)(1), with the initial evidence specified in
Sec. 214.2, and in accordance with the form instructions. * * *
* * * * *

PART 248--CHANGE OF NONIMMIGRANT CLASSIFICATION

0
5. The authority citation for part 248 continues to read as follows:


[[Page 2084]]


Authority: 8 U.S.C. 1101, 1103, 1184, 1258; 8 CFR part 2.

0
6. Section 248.3 is amended by revising the section heading and
paragraph (a) to read as follows:


Sec. 248.3 Petition and application.

* * * * *
(a) Requests by petitioners. A petitioner must submit a request for
a change of status to E-1, E-2, E-3, H-1C, H-1B, H-1B1, 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.
* * * * *

PART 274a--CONTROL OF EMPLOYMENT OF ALIENS

0
7. The authority citation for part 274a continues to read as follows:

Authority: 8 U.S.C. 1101, 1103, 1324a; 48 U.S.C. 1806; 8 CFR
part 2.

0
8. Section 274a.12 is amended by:
0
a. Revising the first sentence of paragraph (b)(9);
0
b. Revising the first sentence of paragraph (b)(20);
0
c. Removing the word ``or'' at the end of paragraph (b)(23);
0
d. Removing the period at the end of paragraph (b)(24) and adding in
its place ``; or''; and
0
e. Adding paragraph (b)(25).
The revisions and addition read as follows:


Sec. 274a.12 Classes of aliens authorized to accept employment.

* * * * *
(b) * * *
(9) A temporary worker or trainee (H-1, H-2A, H-2B, or H-3),
pursuant to Sec. 214.2(h) of this chapter, or a nonimmigrant specialty
occupation worker pursuant to section 101(a)(15)(H)(i)(b1) of the Act.
* * *
* * * * *
(20) A nonimmigrant alien within the class of aliens described in
paragraphs (b)(2), (b)(5), (b)(8), (b)(9), (b)(10), (b)(11), (b)(12),
(b)(13), (b)(14), (b)(16), (b)(19), (b)(23) and (b)(25) of this section
whose status has expired but on whose behalf an application for an
extension of stay was timely filed pursuant to Sec. 214.2 or Sec.
214.6 of this chapter. * * *
* * * * *
(25) A nonimmigrant treaty alien in a specialty occupation (E-3)
pursuant to section 101(a)(15)(E)(iii) of the Act.
* * * * *

Jeh Charles Johnson,
Secretary of Homeland Security.
[FR Doc. 2016-00478 Filed 1-13-16; 11:15 am]
BILLING CODE 9111-97-P