DHS Revises Regulations Affecting Highly Skilled Workers

Author: Marta Moakley, XpertHR Legal Editor

January 22, 2016

The Department of Homeland Security (DHS) has revised its regulations to apply existing rules to additional visa categories in order to achieve greater parity in procedures that address comparable visa classifications. The amendments should minimize potential employment disruptions for employers that employ workers in the affected visa categories. The regulations go into effect on February 16, 2016.

The rule will benefit certain highly skilled employees by "removing unnecessary hurdles that place such workers at a disadvantage when compared to similarly situated workers." Workers in the following visa categories will be affected by the regulations:

  • Nonimmigrant classifications for specialty occupation from Chile, Singapore (H-1B1) and Australia (E-3);
  • Immigration 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.

The new regulations will 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. The regulations also clarify that H-1B1 and principal E-3 nonimmigrants are allowed to work without having to separately apply to DHS for employment authorization. If an employer has timely and properly filed for an extension of a worker's stay (whether H-1B1, principal E-3 or CW-1 nonimmigrants), then the worker will have authorization for continued employment for up to 240 days after the status has expired.

The regulations also harmonize existing procedures for extension of stay and change of status requests to include these nonimmigrant classifications.

In the case of EB-1 outstanding professors and researchers, the list of initial evidence will be expanded to allow petitioners to submit evidence comparable to the other forms of evidence already listed for the EB-1 Extraordinary Ability category.

The amendments should ease the process for US employers to attract and retain highly skilled foreign workers.