On February 26, 2014, USCIS submitted to the White House OMB a proposed rule that affects nonimmigrant E-3 Australian workers, H-1B1 Singapore and Chile Free Trade Agreement workers, and CW-1 Norther Mariana Islands workers as well as immigrant workers for EB-1B Outstanding Researchers and Teachers. In this proposed rule, USCIS proposes to amend its regulations affecting high-skilled workers within the nonimmigrant classifications for specialty occupation professionals from Chile and Singapore (H-1B1) and from Australia (E-3). It also affects the immigration classification for employment-based first preference (EB-1) outstanding professors and researchers. Additionally, it proposes to amend regulations regarding continued employment authorization for nonimmigrant workers in the Commonwealth of the Northern Mariana Islands (CNMI)-Only Transitional Worker (CW-1) classification.

USCIS proposes changes that would harmonize the regulations for E-3, H-1B1, and CW-1 nonimmigrant classifications with existing regulations for other similarly situated nonimmigrant classifications. USCIS is proposing these changes to the regulations to benefit these high-skilled workers and CW-1 transitional workers by removing unnecessary hurdles that place such workers at a disadvantage when compared to similarly situated workers in other visa classifications. The portion of the proposed rule addressing E-3 and H-1B1, and CW-1 nonimmigrant classifications would extend the period of authorized employment while requests for an extension of stay for these employment-based nonimmigrant visa classifications are being reviewed.  

The regulations at 8 CFR 274a.12(b)(20) generally provide aliens in specific nonimmigrant classifications with authorization to continue employment with the same employer for a 240-day period beyond the period specified on the Arrival-Departure Record, Form I-94, as long as a timely application for an extension of stay is filed on an alien's behalf. This provision applies only to the classifications specified in the regulation which does not currently include the E-3, H-1B1, and CW-1 nonimmigrant classifications. By harmonizing the regulations for E-3, H-1B1, and CW-1 nonimmigrants with the other listed nonimmigrant classifications, this proposed rule would provide equity for these nonimmigrants relative to other nonimmigrant classifications. The proposed rule also would help employers of E-3, H-1B1, and CW-1 nonimmigrants avoid potential interruptions of employment for E-3, H-1B1, and CW-1 employees during the period that requests for an extension of these employment-based nonimmigrant visa classifications are being reviewed. These disruptions could result in lost wages for an employee and lost productivity for an employer. DHS does not have data on the number of employers or E-3, H-1B1, and CW-1 nonimmigrants experiencing disruption in employment by not receiving an approval of the extension before the expiration date specified on the Arrival-Departure Record or the duration (length of time) of any disruption.  

The portion of the proposed rule addressing the evidentiary requirements for the EB-1 outstanding professor and researcher employment-based immigrant classification would allow for the submission of comparable evidence (achievements not listed in the criteria such as important patents or prestigious, peer-reviewed funding grants) for that listed in 8 CFR 204.5(i)(3)(i)(A) through (F) to establish that the EB-1 professor or researcher is recognized internationally as outstanding in his or her academic field. Similar to the benefits of harmonizing E-3, H-1B1, and CW-1 provisions, the harmonization of the evidentiary requirements for EB-1 outstanding professors and researchers with other comparable employment-based immigrant classifications would provide equity for EB-1 outstanding professors and researchers relative to those other employment-based visa categories. The proposed rule may also facilitate petitioners' recruitment of the EB-1 outstanding professors and researchers by expanding the range of evidence that may be adduced to support their petitions.

Along with the H-4 EAD reform, this proposal has been in the USCIS rule-making agenda for a while to boost and relax the the high-skilled nonimmigrant and immigrant workers requirements. Out of the twin-proposals for high-skilled foreign workers in the rule-making agenda, they initiated the process for H-4 EAD proposed rule first, and now they are initiating formally the rule making process for the second administrative-fix high-skilled foreign worker proposed rule here. We will see whether this new "proposed" rule will also be stuck and dragged in the White House OMB.