[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
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                                                    Benefits and avoided
            Costs                    Change                 costs
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                   E-3, H-1B1, and CW-1 Nonimmigrants
------------------------------------------------------------------------
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.
------------------------------------------------------------------------

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/index.php?pid=19117#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/default/files/rss_viewer/immigration_blueprint.pdf.
    \3\ See White House, Building a 21st Century Immigration System, 
May 2011, at 1, available at http://www.whitehouse.gov/sites/default/files/rss_viewer/immigration_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/research/attracting-and-selecting-global-talent-pool-%E2%80%94-policy-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\
---------------------------------------------------------------------------

    \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\
---------------------------------------------------------------------------

    \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 [email protected] 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.
---------------------------------------------------------------------------

    \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/Memoranda/i-140-evidence-pm-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/february-2015-retrospective-review-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/DHSregreviewcommentApr122011%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/DHSregreviewcommentApr122011%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