Final Rule for H1B1, CW1, and E-3 Nonimmigrants and EB1 Immigrants

The U.S. Citizenship and Immigration Services (USCIS) published a final rule that became effective on February 16, 2016, which provides a few revisions to several nonimmigrant visa categories and one immigrant visa category. More specifically, the revisions impact the H1B1 (specialty occupation professionals who are citizens of Chile and Singapore), CW1 (transitional workers who will be employed in the Commonwealth of the Northern Mariana Islands), and E-3 (specialty occupation professionals who are Australian citizens) nonimmigrant visa categories, as well as the EB1(b) (outstanding professor or researcher) immigrant visa category. The new regulations are primarily intended to correct inconsistencies and gaps in prior regulations.

240-Day Employment Authorization Based on Pending E-3 or H1B1 Extensions

Before the new final rule, nonimmigrants in the E-3 or H1B1 classifications did not enjoy the benefits of automatic extension of employment authorization while waiting for a decision on a timely filed petition to extend status. The final rule amends the USCIS regulations to grant an additional 240 days of employment authorization beyond the expiration date on the I-94 card for an E-3 or H1B1 worker. This change brings the E-3 and H1B1 classifications in line with other nonimmigrant classifications, such as H1B and L-1, which have long enjoyed this benefit.

E-3 and H1B1 Change Makes Extensions in U.S. Feasible

Without the 240-day work authorization, in most situations, it was not practical for employers of foreign nationals in E-3 and/or H1B1 to request extensions of status from within the United States. In order to avoid a lapse in work authorization, an employer attempting to extend an E-3 or H1B1 worker’s status in the U.S. had to file an extension petition with the USCIS long before the individual’s I-94 expiration date.

Adding to this problem is the fact that the premium processing service is not available for these categories. Thus, most E-3 and H1B1 cases, including extension requests, have been resolved by the employee traveling abroad and applying for a visa foil (commonly referred to as a visa stamp) at a U.S. consular post abroad, then reentering the United States in E-3 or H1B1 status. This is possible since a petition approval is not needed to apply for a visa in these categories.

Employment Authorization “Incident to Status” for the E-3 and H1B1 Categories

The final rule also corrects USCIS regulations that have long been inconsistent with USCIS practice. These corrections include adding the E-3 and H1B1 classification to the list of categories that have work authorization “incident to status.” This means that no separate employment authorization document is required for an E-3 or H1B1 worker in order to work in the sponsored E-3 or H1B1 job.

In practice, E-3 and H1B1 workers have never been required to obtain (or even been eligible for) separate authorization to work for the petitioning employer in the approved position. However, until now, the actual USCIS regulations had never been updated to reflect this fact.

Likewise, the E-3 and H1B1 classifications are added to the list of nonimmigrant classes that must file a petition with the USCIS to extend status within the United States. Again, this is not a change in procedure, but merely a correction to outdated regulations that did not address the E-3 and H1B1 classifications and did not reflect actual USCIS procedures.

CW1 Transitional Workers

The final rule corrects an inconsistency in CW1 nonimmigrant regulations. This classification is only available to employers in the Commonwealth of the Northern Mariana Islands (CNMI), during its transition to the U.S. immigration system. This program has been extended through December 31, 2019.

Prior to the final rule, CW1 employees were eligible for an automatic 240-day employment authorization extension as the beneficiaries of a request to change employers. However, CW1 workers seeking an extension with the same employer were not automatically granted one. This unintentionally created an incentive to change employers. The final rule corrects this and grants a 240-day period of employment authorization to a CW1 worker with a pending extension of status with the current employer.

“Comparable Evidence” Allowed for EB1 Outstanding Professors or Researchers

To obtain approval of an EB1(b) immigrant petition for an outstanding professor or researcher, the employer / petitioner must provide evidence that the employee is “recognized internationally as outstanding” in the specific field. The types of evidence that are required are listed in the existing regulations.

In the final rule, the USCIS has amended the regulations to allow a catch-all category of “comparable evidence” to be submitted in place of the evidence specifically listed to have an EB1(b) petition approved. In the final rule, the USCIS also specifically mentions evidence such as “award of important patents” and “prestigious, peer-reviewed funding or grants.”

This change addresses concerns that the previous list of evidence was outdated, and was not permitting deserving employees to present documentation of their respective achievements. Also, this rule change makes the EB1(b) regulations consistent with the existing evidentiary requirements for the EB1(a) (extraordinary ability) and EB2 exceptional ability categories.


The final rule published on January 15, 2016, makes some welcome changes to the USCIS regulations. It adds needed flexibility within the E-3 and H1B1 categories. Likewise, the provision for comparable evidence in the EB1(b) category is a welcome change that harmonizes the requirements of this category with the EB1(a) extraordinary ability and EB2 exceptional ability classifications.


Copyright © 2016, MURTHY LAW FIRM. All Rights Reserved

Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.
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