81_FR_2078 81 FR 2068 - Enhancing Opportunities for H-1B1, CW-1, and E-3 Nonimmigrants and EB-1 Immigrants

81 FR 2068 - Enhancing Opportunities for H-1B1, CW-1, and E-3 Nonimmigrants and EB-1 Immigrants

DEPARTMENT OF HOMELAND SECURITY

Federal Register Volume 81, Issue 10 (January 15, 2016)

Page Range2068-2084
FR Document2016-00478

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.

Federal Register, Volume 81 Issue 10 (Friday, January 15, 2016)
[Federal Register Volume 81, Number 10 (Friday, January 15, 2016)]
[Rules and Regulations]
[Pages 2068-2084]
From the Federal Register Online  [www.thefederalregister.org]
[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
------------------------------------------------------------------------
                   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



                                           2068               Federal Register / Vol. 81, No. 10 / Friday, January 15, 2016 / Rules and Regulations

                                           III. Electronic Access                                  2141. Contact telephone number is (202)                   C. Summary of the Major Provisions of the
                                                                                                   272–8377.                                                    Regulatory Action
                                              Persons with access to Internet may                                                                            D. Cost and Benefits
                                           obtain the final guidance at the USDA                   SUPPLEMENTARY INFORMATION: DHS is                      II. Background
                                           Agricultural Marketing Service Web site                 revising its regulations affecting: (1)                   A. Current Framework
                                           at http://www.ams.usda.gov/rules-                       Highly skilled workers in the                             B. Proposed Rule
                                           regulations/organic. Requests for hard                  nonimmigrant classifications for                          C. Final Rule
                                           copies of the draft guidance documents                  specialty occupation from Chile,                       III. Public Comments on the Proposed Rule
                                           can be obtained by submitting a written                 Singapore (H–1B1), and Australia (E–3);                   A. Summary of Public Comments
                                           request to the person listed in the                     (2) the immigrant classification for                      B. General Comments
                                                                                                   employment-based first preference (EB–                    1. Support
                                           ADDRESSES section of this Notice.
                                                                                                                                                             2. Oppose
                                              Authority: 7 U.S.C. 6501–6522.                       1) outstanding professors and                             C. Employment Authorization for E–3 and
                                                                                                   researchers; and (3) nonimmigrant                            H–1B1 Nonimmigrants
                                             Dated: January 11, 2016.                              workers in the Commonwealth of the                        1. Employment authorization incident to
                                           Erin Morris,                                            Northern Mariana Islands (CNMI)-Only                         status with a specific employer
                                           Associate Administrator, Agricultural                   Transitional Worker (CW–1)                                2. Continued employment authorization
                                           Marketing Service.                                      classification.                                              while a timely extension of stay request
                                           [FR Doc. 2016–00678 Filed 1–14–16; 8:45 am]                Specifically, in this final rule, DHS is                  is pending
                                           BILLING CODE 3410–02–P                                  amending its regulations to include H–                    D. Employment Authorization for CW–1
                                                                                                                                                                Nonimmigrants While a Timely Filed
                                                                                                   1B1 and principal E–3 classifications in
                                                                                                                                                                Extension of Stay Request is Pending
                                                                                                   the list of classes of foreign nationals                  E. Application Requirement for E–3 and H–
                                           DEPARTMENT OF HOMELAND                                  authorized for employment incident to                        1B1 Nonimmigrants Requesting Changes
                                           SECURITY                                                status with a specific employer, and to                      of Status or Extensions of Stay
                                                                                                   clarify that H–1B1 and principal E–3                      F. Comparable Evidence for EB–1
                                           8 CFR Parts 204, 214, 248, and 274a                     nonimmigrants are allowed to work                            Outstanding Professors and Researchers
                                           [CIS No. 2515–11; DHS Docket No. USCIS–                 without having to separately apply to                     1. Support
                                           2012–0005]                                              DHS for employment authorization.                         2. Oppose
                                                                                                      DHS is also amending the regulations                   3. Suggestion for other evidence
                                           RIN 1615–AC00                                                                                                     G. Miscellaneous Comments
                                                                                                   to provide H–1B1 and principal E–3                     IV. Statutory and Regulatory Requirements
                                           Enhancing Opportunities for H–1B1,                      nonimmigrants with authorization for                      A. Executive Orders 12866 and 13563
                                           CW–1, and E–3 Nonimmigrants and                         continued employment with the same                        1. E–3 and H–1B1 nonimmigrant workers
                                           EB–1 Immigrants                                         employer if the employer has timely                       2. CW–1 nonimmigrant workers
                                                                                                   filed for an extension of the                             3. EB–1 outstanding professors and
                                           AGENCY:  U.S. Citizenship and                           nonimmigrant’s stay. DHS is providing                        researchers
                                           Immigration Services, Department of                     this same authorization for continued                     B. Regulatory Flexibility Act
                                           Homeland Security.                                      employment for CW–1 nonimmigrants if                      C. Unfunded Mandates Reform Act of 1995
                                           ACTION: Final rule.                                     a petitioner has timely filed a Petition                  D. Small Business Regulatory Enforcement
                                                                                                                                                                Fairness Act of 1996
                                                                                                   for a CNMI-Only Nonimmigrant                              E. Executive Order 13132
                                           SUMMARY:    In this final rule, the                     Transitional Worker, Form I–129CW, or
                                           Department of Homeland Security                                                                                   F. Executive Order 12988
                                                                                                   successor form requesting an extension                    G. Paperwork Reduction Act
                                           (DHS) is revising its regulations                       of stay.
                                           affecting: highly skilled workers in the
                                                                                                      In addition, DHS is updating the                    I. Executive Summary
                                           nonimmigrant classifications for
                                                                                                   regulations describing the filing
                                           specialty occupation from Chile,                                                                               A. Purpose of the Regulatory Action
                                                                                                   procedures for extensions of stay and
                                           Singapore (H–1B1), and Australia (E–3);                                                                          DHS is amending its regulations in
                                                                                                   change of status requests to include the
                                           the immigrant classification for                                                                               several ways to improve the programs
                                                                                                   principal E–3 and H–1B1 nonimmigrant
                                           employment-based first preference (EB–                                                                         serving the principal E–3, H–1B1, and
                                                                                                   classifications. These changes will
                                           1) outstanding professors and                                                                                  CW–1 nonimmigrant classifications and
                                                                                                   harmonize and align the regulations for
                                           researchers; and nonimmigrant workers                                                                          the EB–1 immigrant classification for
                                                                                                   principal E–3, H–1B1, and CW–1
                                           in the Commonwealth of the Northern                                                                            outstanding professors and researchers.
                                                                                                   nonimmigrant classifications with the
                                           Mariana Islands (CNMI)-Only                                                                                    These changes will harmonize the
                                                                                                   existing regulations for other, similarly
                                           Transitional Worker (CW–1)                                                                                     regulations governing these
                                                                                                   situated nonimmigrant classifications.
                                           classification. DHS anticipates that                                                                           classifications with regulations
                                                                                                      Finally, DHS is expanding the current
                                           these changes to the regulations will                                                                          governing similar visa classifications
                                                                                                   list of initial evidence for EB–1
                                           benefit these highly skilled workers and                                                                       and remove unnecessary hurdles that
                                                                                                   outstanding professors and researchers
                                           CW–1 nonimmigrant workers by                                                                                   have placed principal E–3, H–1B1, CW–
                                                                                                   to allow petitioners to submit evidence
                                           removing unnecessary hurdles that                                                                              1 and certain EB–1 workers at a
                                                                                                   comparable to the other forms of
                                           place such workers at a disadvantage                                                                           disadvantage when compared to
                                                                                                   evidence already listed in 8 CFR
                                           when compared to similarly situated                                                                            similarly situated workers in other visa
                                                                                                   204.5(i)(3)(i). This will harmonize the
                                           workers in other visa classifications.                                                                         classifications. DHS believes this rule
                                                                                                   regulations for EB–1 outstanding
                                           DATES: This final rule is effective                                                                            also best achieves our goal of addressing
                                                                                                   professors and researchers with certain
                                           February 16, 2016.                                      employment-based immigrant categories                  unwarranted disparities involving
                                           FOR FURTHER INFORMATION CONTACT:                                                                               continued employment authorization
Lhorne on DSK5TPTVN1PROD with RULES




                                                                                                   that already allow for submission of
                                           Paola Rodriguez Hale, Adjudications                     comparable evidence.                                   among and within particular
                                           Officer (Policy), Office of Policy and                                                                         nonimmigrant classifications.
                                           Strategy, U.S. Citizenship and                          Table of Contents
                                           Immigration Services, Department of                                                                            B. Legal Authorities
                                                                                                   I. Executive Summary
                                           Homeland Security, 20 Massachusetts                        A. Purpose of the Regulatory Action                   Sections 103(a) and 214(a)(1) of the
                                           Avenue NW., Washington, DC 20529–                          B. Legal Authorities                                Immigration and Nationality Act (INA),


                                      VerDate Sep<11>2014   15:13 Jan 14, 2016   Jkt 238001   PO 00000   Frm 00002   Fmt 4700   Sfmt 4700   E:\FR\FM\15JAR1.SGM   15JAR1


                                                                Federal Register / Vol. 81, No. 10 / Friday, January 15, 2016 / Rules and Regulations                                                  2069

                                           8 U.S.C. 1103(a) and 8 U.S.C. 1184(a)(1),                1B1 nonimmigrants (8 CFR 214.1(c)(1)                   the employment authorization
                                           authorize the Secretary of Homeland                      and 8 CFR 248.3(a) with respect to filing              regulations for H–1B1 and principal E–
                                           Security (Secretary) to administer and                   procedures and 8 CFR 274a.12(b)(9) and                 3 nonimmigrants will make those
                                           enforce the immigration and nationality                  8 CFR 274a.12(b)(25) with respect to                   regulations consistent with the
                                           laws and to establish by regulation the                  work authorization), continued work                    regulations of other similarly situated
                                           time and conditions of admission of                      authorization for principal E–3, H–1B1,                nonimmigrant worker classifications,
                                           nonimmigrants. See also section 451 of                   and CW nonimmigrants (8 CFR                            which will provide qualitative benefits.
                                           the Homeland Security Act of 2002,                       274a.12(b)(20)), and evidentiary                       In this final rule, DHS also amends its
                                           Public Law 107–296, 116 Stat. 2135, (6                   requirements for EB–1 outstanding                      regulations to authorize continued
                                           U.S.C. 271) (describing responsibilities                 professors and researchers (8 CFR
                                                                                                                                                           employment for up to 240 days for H–
                                           with respect to immigration services                     204.5(i)(3)(ii)). By proposing this rule,
                                                                                                                                                           1B1, principal E–3, and CW–1
                                           and adjudications). Further, section                     DHS intended to remove current
                                           274A(h)(3)(B) of the INA, 8 U.S.C.                       regulatory obstacles that may cause                    nonimmigrant workers whose status has
                                           1324a(h)(3)(B), recognizes the                           unnecessary disruptions to petitioning                 expired, provided that the petitioner
                                           Secretary’s authority to extend                          employers’ productivity. DHS also                      timely filed the requests for extensions
                                           employment authorization to                              intended to remove obstacles for these                 of stay with U.S. Citizenship and
                                           individuals who are not citizens or                      workers to remain in or enter the United               Immigration Services (USCIS). Such
                                           nationals of the United States. Finally,                 States and to treat them in the same way               amendment will minimize the potential
                                           title VII of the Consolidated Natural                    as others under similar classifications                for employment disruptions for U.S.
                                           Resources Act of 2008 (CNRA) extends                     are treated. See Enhancing                             employers of H–1B1, principal E–3, and
                                           U.S. immigration laws to the CNMI and                    Opportunities for H–1B1, CW–1, and E–                  CW–1 nonimmigrant workers. Finally,
                                           authorized the CW nonimmigrant                           3 Nonimmigrants and EB–1 Immigrants,                   this final rule may assist U.S. employers
                                           classification. Public Law 110–229, 122                  79 FR 26870 (May 12, 2014). After                      that recruit EB–1 outstanding professors
                                           Stat. 754, 853 (2008) (revising 48 U.S.C.                careful consideration of public                        and researchers by expanding the range
                                           1806).                                                   comments, DHS is adopting the                          of evidence that they may provide to
                                                                                                    proposed regulatory amendments                         support their petitions. A summary of
                                           C. Summary of the Major Provisions of
                                                                                                    without change.                                        the costs and benefits of the changes
                                           the Regulatory Action
                                                                                                    D. Cost and Benefits                                   made by this rule is presented in Table
                                             On May 12, 2014, DHS published a
                                           proposed rule to amend regulations                         This final rule will not impose any                  1.
                                           governing filing procedures and work                     additional costs on employers, workers,
                                           authorization for principal E–3 and H–                   or any governmental entity. Changing

                                                                                                TABLE 1—SUMMARY OF COSTS AND BENEFITS
                                               Costs                                           Change                                                       Benefits and avoided costs

                                                                                                          E–3, H–1B1, and CW–1 Nonimmigrants

                                           None ..........   Continued employment up to 240 days for an H–1B1, principal                Avoided cost of lost productivity for U.S. employers of principal
                                                              E–3 or CW–1 nonimmigrant workers while a timely filed re-                   E–3, H–1B1, and CW–1 nonimmigrant workers and avoided
                                                              quest to extend stay is pending.                                            lost wages by the 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 non-
                                                                                                                                          immigrants whose extension request is filed by the same em-
                                                                                                                                          ployer relative to other CW–1 nonimmigrants who change
                                                                                                                                          employers. Qualitative benefit.
                                                             Clarify that principal E–3 and H–1B1 nonimmigrants are work                Ensures the regulations are consistent with statutory authority,
                                                               authorized incident to status, and specify current filing proce-           and codifies current practice. Qualitative benefit.
                                                               dures for requesting change of status or 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 submission of comparable evidence to that listed             Will provide equity for EB–1 outstanding professors and re-
                                                                in 8 CFR 204.5(i)(3)(i)(A)–(F) to establish that the EB–1 out-            searchers relative to certain employment-based immigrants
                                                                standing professor or researcher is recognized internationally            listed in 8 CFR 204.5.
                                                                as outstanding in his or her academic field.                            Qualitative benefit.



                                           II. Background                                           Law 101–649, 104 Stat. 4978. The new                   our economic needs.1 Those
                                                                                                    employment-based immigration
                                           A. Current Framework
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                                                                                                                                                              1 See Statement by President upon Signing of the
                                                                                                    provisions were intended to cultivate a
                                                                                                                                                           Immigration Act of 1990, 1990 U.S.C.C.A.N 6801–
                                             The Immigration Act of 1990                            more competitive economy by                            1 (Nov. 29, 1990), available at http://
                                           (IMMACT90), among other things,                          encouraging skilled individuals to                     www.presidency.ucsb.edu/ws/
                                           reorganized immigrant classifications                    immigrate to the United States to meet                 index.php?pid=19117#ixzz1KvDlYZql; see also H.R.
                                                                                                                                                           Rep. No. 101–723(I), at 6721 (1990) (‘‘[I]mmigration
                                           and also created new employment-based                                                                           can and should be incorporated into an overall
                                           immigrant classifications. See Public                                                                                                                      Continued




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                                           2070               Federal Register / Vol. 81, No. 10 / Friday, January 15, 2016 / Rules and Regulations

                                           IMMACT90 provisions addressed the                       include the principal E–3 and H–1B1                    nonimmigrants when these categories
                                           need of American businesses for highly                  nonimmigrant classifications (8 CFR                    were first established, the regulations
                                           skilled, specially trained personnel to                 214.1(c)(1) and 8 CFR 248.1(a)); and                   were not. In this final rule, DHS is
                                           fill increasingly sophisticated jobs for                  • Allow a petitioner who wants to                    amending the regulations to add H–1B1
                                           which domestic personnel could not be                   employ an EB–1 outstanding professor                   and principal E–3 nonimmigrants to the
                                           found. See Employment-Based                             or researcher to submit evidence                       list of nonimmigrants that may extend
                                           Immigrants, 56 FR 30703 (July 5, 1991).                 comparable to the evidence otherwise                   their stay or change their status in the
                                           Lawmakers estimated the need for                        described in 8 CFR 204.5(i)(3)(i), which               United States.
                                           highly skilled workers based on an                      may demonstrate that the beneficiary is                   In addition, current regulations do not
                                           increasing skills gap in the current and                recognized internationally as an                       designate H–1B1 nonimmigrants and
                                           projected U.S. labor pools. Id.                         outstanding professor or researcher.                   principal E–3 as authorized to accept
                                              American businesses continue to need                                                                        employment with a specific employer
                                                                                                   C. Final Rule
                                           highly skilled nonimmigrant and                                                                                incident to status, although such
                                           immigrant workers, and the U.S. legal                      Consistent with the vision of                       nonimmigrants are so authorized by
                                           immigration system can be improved by                   attracting and retaining foreign workers,              statute. See INA section 212(t)[1st], 8
                                           removing regulatory barriers to lawful                  this final rule removes unnecessary                    U.S.C. 1182(t)[1st], (noting the statutory
                                           employment of these workers through a                   obstacles for principal E–3 and H–1B1                  requirements an employer must fulfill to
                                           system that reflects our diverse values                 highly skilled workers and CW–1                        petition for an H–1B1 or E–3
                                           and needs.2 Attracting and retaining                    nonimmigrant workers to continue                       nonimmigrant); see also INA sections
                                           highly skilled workers is critical to                   working in the United States, and for                  101(a)(15)(E)(iii), 8 U.S.C.
                                           sustaining our Nation’s global                          EB–1 outstanding professors and                        1101(a)(15)(E)(iii), 101(a)(15)(H)(1)(b)(1),
                                           competitiveness. By attracting the best                 researchers to seek admission as                       8 U.S.C. 1101(a)(15)(H)(1)(b)(1), and
                                           and brightest from around the world,                    immigrants. For example, under current                 214(g)(8)(C), 8 U.S.C. 1184(g)(8)(C)
                                           the United States can harness their                     regulations, H–1B1, CW–1, and                          (requiring ‘‘intending employers’’ of
                                                                                                   principal E–3 nonimmigrants are not                    certain H–1B1 nonimmigrants to file an
                                           talents, skills, and ideas to help the U.S.
                                                                                                   included in the regulations that                       attestation with the Secretary of Labor).
                                           economy grow.3 Governments seeking
                                                                                                   authorize continued employment while                   The E–3 and H–1B1 nonimmigrant
                                           to make the most of highly skilled
                                                                                                   a timely filed extension of stay request               classifications were established by
                                           nonimmigrants and immigrants face the
                                                                                                   is pending. The regulations at 8 CFR                   statute in 2005 and 2003, respectively.
                                           challenge of identifying, attracting, and
                                                                                                   274a.12(b)(20) authorize foreign                       See REAL ID Act of 2005, Public Law
                                           retaining those with the best prospects
                                                                                                   nationals in specific nonimmigrant                     109–13, section 501, 119 Stat. 231;
                                           for success.4
                                                                                                   classifications to continue employment                 United States-Singapore Free Trade
                                           B. Proposed Rule                                        with the same employer for a 240-day                   Agreement Implementation Act, Public
                                             On May 12, 2014, DHS published a                      period beyond the authorized period                    Law 108–78, section 402, 117 Stat. 948
                                           proposed rule in the Federal Register at                specified on the Arrival-Departure                     (2003); United States-Chile Free Trade
                                           79 FR 26870, proposing to:                              Record, Form I–94, as long as a timely                 Agreement Implementation Act, Public
                                             • Clarify that principal E–3 and H–                   request for an extension of stay is filed.             Law 108–77, sections 402–404, 117 Stat.
                                           1B1 nonimmigrants are authorized to                     This means that these individuals can                  909 (2003). Since that time, the DHS
                                           work for the specific employer listed in                continue to work with the specific                     employment authorization regulations
                                           their petition without requiring separate               employer listed in their petition, even                at 8 CFR 274a.12 have not been updated
                                                                                                   after their authorized stay expires, as                to include principal E–3 and H–1B1
                                           approval for work authorization from
                                                                                                   long as their extension of stay request is             nonimmigrants as foreign nationals
                                           USCIS (8 CFR 274a.12(b)(25) and 8 CFR
                                                                                                   still pending. Because Congress created                authorized to accept employment with a
                                           274a.12(b)(9));
                                                                                                   the E–3, H–1B1, and CW–1                               specific employer, incident to status, in
                                             • Authorize continued employment
                                                                                                   nonimmigrant classifications after 8                   the United States as designated by
                                           authorization for CW–1, principal E–3,
                                                                                                   CFR 274a.12(b)(20) was effective, these                statute.
                                           and H–1B1 nonimmigrants with
                                                                                                   nonimmigrant workers are not included                     Finally, the language of the current
                                           pending, timely filed extension of stay
                                                                                                   in this provision and cannot continue to               EB–1 regulations for outstanding
                                           requests (8 CFR 274a.12(b)(20));
                                                                                                   work with the same employer beyond                     professors and researchers may not fully
                                             • Update the regulations describing
                                                                                                   the existing authorization while waiting               encompass other types of evidence that
                                           the filing procedures for extension of
                                                                                                   for USCIS to adjudicate an extension of                may be comparable, such as evidence
                                           stay and change of status requests to
                                                                                                   stay request. DHS is amending its                      that the professor or researcher has
                                           strategy that promotes the creation of the type of
                                                                                                   regulations at 8 CFR 274a.12(b)(20) to                 important patents or prestigious peer-
                                           workforce needed in an increasingly competitive         give H–1B1, CW–1, and principal E–3                    reviewed funding grants. In this final
                                           global economy without adversely impacting on the       nonimmigrants the same treatment as                    rule, DHS is modifying the regulations
                                           wages and working conditions of American                other, similarly situated nonimmigrants,               describing permissible initial evidence
                                           workers.’’).
                                              2 See White House, Building a 21st Century
                                                                                                   such as H–1B, E–1, and E–2                             for outstanding professors and
                                           Immigration System, May 2011, at 3 and 9, available     nonimmigrants.                                         researchers to allow a petitioner to
                                           at http://www.whitehouse.gov/sites/default/files/          Moreover, E–3 and H–1B1                             submit evidence that is comparable to
                                           rss_viewer/immigration_blueprint.pdf.                   nonimmigrants are not listed in the                    the currently accepted evidence listed
                                              3 See White House, Building a 21st Century
                                                                                                   regulations describing the filing                      in 8 CFR 204.5(i)(3)(i) to demonstrate
                                           Immigration System, May 2011, at 1, available at        procedures for extension of stay and
                                           http://www.whitehouse.gov/sites/default/files/
                                                                                                                                                          that such beneficiaries are recognized
                                                                                                   change of status requests. Although the                internationally as outstanding in their
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                                           rss_viewer/immigration_blueprint.pdf.
                                              4 See Demetrios G. Papademetriou and Madeleine       form instructions for H–1B1 and                        academic areas. See INA section
                                           Sumption, Attracting and Selecting from the Global      principal E–3 extension of stay and                    203(b)(1)(B), 8 U.S.C. 1153(b)(1)(B). A
                                           Talent Pool, Policy Challenges, Migration Policy        change of status requests (Instructions                petitioner may submit such evidence
                                           Inst., Sept. 2013, at 4, available at http://
                                           www.migrationpolicy.org/research/attracting-and-
                                                                                                   for Petition for a Nonimmigrant Worker,                instead of, or in addition to, the
                                           selecting-global-talent-pool-%E2%80%94-policy-          Form I–129) were updated to include                    currently accepted evidence described
                                           challenges.                                             H–1B1 and principal E–3                                under 8 CFR 204.5(i)(3)(i), as long as the


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                                                              Federal Register / Vol. 81, No. 10 / Friday, January 15, 2016 / Rules and Regulations                                           2071

                                           petitioner establishes that the evidence                III. Public Comments on the Proposed                   noted the need for regulatory action in
                                           is comparable to those listed under 8                   Rule                                                   order to attract and retain workers, and
                                           CFR 204.5(i)(3)(i)(A)–(F) and the                                                                              supported the ongoing efforts to
                                                                                                   A. Summary of Public Comments
                                           standards in 8 CFR 204.5(i)(3)(i) do not                                                                       harmonize the rules that are applicable
                                           readily apply. This change provides                        In response to the proposed rule, DHS               to similarly situated visa categories and
                                           greater flexibility for outstanding                     received 38 comments during the 60-                    bring them in line with actual agency
                                           professors and researchers because the                  day public comment period.                             practice. This same commenter added
                                           petitioner will no longer be limited to                 Commenters included individuals,                       that the proposed changes will provide
                                           the list of initial evidence. Finally, these            employers, workers, attorneys, nonprofit               uniformity and predictability for U.S.
                                           changes will further the goal of                        organizations, and one business                        employers and their employees and will
                                           removing unnecessary obstacles for                      organization.                                          enhance compliance at virtually no cost
                                           these workers to seek admission to the                     While opinions on the proposed rule                 to DHS. Another commenter also
                                           United States as an immigrant.                          varied, a clear majority of the                        underscored the importance of
                                                                                                   commenters supported the proposed                      removing unnecessary regulatory
                                              In preparing this final rule, DHS                    changes in the rule. Specifically,                     barriers to improve the ability of U.S.
                                           considered all the public comments                      supporters of the proposed rule                        higher education institutions to attract
                                           received and all other materials                        welcomed the proposed employment                       and retain talented and sought-after
                                           contained in the docket. This final rule                authorization changes for principal E–3,               professionals. Some commenters
                                           adopts the regulatory amendments set                    H–1B1, and CW–1 nonimmigrants; the                     supported the changes, but did not
                                           forth in the proposed rule without                      proposed update to the regulations                     discuss perceived benefits. One
                                           substantive change. The rationale for the               clarifying the application requirements                commenter requested DHS to finalize
                                           proposed rule and the reasoning                         for E–3 and H–1B1 nonimmigrants                        the rule quickly.
                                           provided in its background section                      requesting changes of status or
                                           remain valid with respect to these                      extensions of stay; and the comparable                 2. Oppose
                                           regulatory amendments. Section II.B                     evidence provision for EB–1                              One commenter expressed general
                                           above and this section each describe the                outstanding professors and researchers.                opposition to this rulemaking, but did
                                           changes that are the focus of this                      Several commenters supported the                       not cite any specific provision or offer
                                           rulemaking. This final rule does not                    comparable evidence provision and                      any specific alternatives or suggestions
                                           address a number of comments that                       suggested additional evidence for DHS                  relating to the proposals outlined in this
                                           DHS considered beyond the scope of                      to consider when evaluating eligibility                rulemaking. Another commenter
                                           this rulemaking because the comments                    for EB–1 outstanding professors and                    opposed having temporary worker
                                           requested changes to the regulations                    researchers. Overall, the commenters                   programs, in general, but did not offer
                                           that DHS had not proposed and that                      supported DHS’s efforts to harmonize                   any specific alternatives that would fall
                                           commenters could not have reasonably                    the regulations to benefit highly skilled              within the scope of this rule. DHS has
                                           anticipated that DHS would make. Such                   workers and CW–1 nonimmigrant                          not changed the final rule in response
                                           comments include suggestions for                        workers and to remove unnecessary                      to these comments.
                                           expanding premium processing services                   hurdles that place such workers at a
                                           and for providing expedited processing                                                                         C. Employment Authorization for E–3
                                                                                                   disadvantage when compared to
                                           for certain family-based petitions, travel                                                                     and H–1B1 Nonimmigrants
                                                                                                   similarly situated workers.
                                           while an application for an adjustment                     Some commenters stated general                      1. Employment Authorization Incident
                                           of status is pending, re-entry permits,                 opposition to the proposed rule, but did               to Status With a Specific Employer
                                           translations, grace periods, specific                   not offer any specific alternatives or
                                           comments in reference to another DHS                                                                              Three commenters supported the
                                                                                                   suggestions relating to the proposals                  proposal to add the H–1B1 and
                                           rulemaking 5, numerical per-country                     outlined in this rulemaking. Another
                                           limits, obligations to hire U.S. citizens                                                                      principal E–3 classifications to the list
                                                                                                   commenter stated that the changes                      of nonimmigrants authorized to work
                                           first, or questions on a variety of CNMI-               proposed with respect to EB–1
                                           specific topics (for example, changes to                                                                       incident to status with a specific
                                                                                                   outstanding professors and researchers                 employer. They stated that the proposed
                                           CW–1 validity periods, CW–1 reentry                     would be insufficient, and proposed a
                                           permits, the reduction of CW–1                                                                                 change reflects the current practice,
                                                                                                   ‘‘point based system’’ instead.                        which allows work authorization based
                                           nonimmigrant workers, changes to                           DHS has reviewed all of the public
                                           USCIS processing of petitions for CW–                                                                          on approval of the [nonimmigrant]
                                                                                                   comments received in response to the                   classification, but does not require a
                                           1 workers, and suggestions for waivers                  proposed rule, and responds to the
                                           of occupational certifications). Although                                                                      separate application for employment
                                                                                                   issues raised by the comments below.                   authorization. Therefore, the proposed
                                           DHS has carefully reviewed each of                      The DHS responses are organized by
                                           these comments, DHS considers these                                                                            change will produce consistency
                                                                                                   subject area.                                          between current practice and regulatory
                                           comments to be out-of-scope for the
                                           reasons stated, and will not take further               B. General Comments                                    language.
                                           action on these comments in connection                                                                            One commenter recommended that
                                                                                                   1. Support                                             DHS amend the regulations to list B–1
                                           with this specific rulemaking
                                           proceeding. All comments and other                        Multiple commenters provided                         nonimmigrant household employees in
                                           docket material are available for viewing               general support for all the proposed                   8 CFR 274a.12(b) as authorized for
                                           at the Federal Docket Management                        changes in rule. One supporter stated                  employment with a specific employer
                                                                                                   that the proposed regulatory                           incident to status. The commenter also
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                                           System (FDMS) at http://
                                           www.regulations.gov, docket number                      amendments will benefit many                           recommended that DHS amend 8 CFR
                                           USCIS–2012–0005.                                        nonimmigrants. Another supporter                       274a.12(a) to include spouses of L–1, E–
                                                                                                   indicated that the proposed changes                    1, and E–2 nonimmigrants in the
                                             5 These comments were forwarded to the                will add to the much-needed math,                      categories of individuals who are
                                           appropriate docket and considered, as appropriate,      science, and technology pool of workers                authorized for employment incident to
                                           in drafting the relevant regulation.                    in the United States. One commenter                    status. DHS has determined that


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                                           2072               Federal Register / Vol. 81, No. 10 / Friday, January 15, 2016 / Rules and Regulations

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


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                                                               Federal Register / Vol. 81, No. 10 / Friday, January 15, 2016 / Rules and Regulations                                         2073

                                           commenters noted that the 240-day                       CW classification published on October                 the support for the continued work
                                           continued employment authorization                      27, 2009, and provided a 30-day                        authorization provision for CW–1
                                           would protect against such                              comment period.7 On December 9, 2009,                  nonimmigrants. The regulatory changes
                                           interruptions by ensuring that U.S.                     DHS published a notice in the Federal                  aim to provide both the employer and
                                           employers of CW–1 nonimmigrants                         Register reopening and extending the                   employee with continued employment
                                           experience minimal disruption in the                    public comment period for an                           when an employer files a timely request
                                           continued employment of their workers.                  additional 30 days.8 The commenter did                 for an extension of stay for the CW–1
                                           One commenter stated that this                          not indicate whether the commenter                     nonimmigrant worker. However, this
                                           proposed change would alleviate fear                    submitted the suggestion for the                       new provision does not change the
                                           among employers and workers of                          continued employment authorization                     filing requirements or allot more time
                                           interruptions in employment resulting                   provision in response to either of those               for employers to file extension requests.
                                           from a lack of continued work                           comment periods. However, DHS did                      Under 8 CFR 214.2 (w)(12)(ii), an
                                           authorization. Finally, one commenter                   receive post-publication correspondence                employer may file up to 6 months before
                                           stated that the proposed change would                   requesting continued employment                        it actually needs the employee’s
                                           provide equity for CW–1 nonimmigrants                   authorization for workers with pending                 services, and this rulemaking does not
                                           by ensuring that they are afforded the                  extensions.9 DHS responded to these                    change this filing requirement. Instead,
                                           same treatment as other similarly                       post publication correspondence by                     this rulemaking provides a mechanism
                                           situated individuals.                                   stating that CW–1 nonimmigrants do not                 that automatically extends employment
                                              DHS appreciates the support from the                 have continuing employment                             authorization, for a period of up to 240
                                           public for this proposed provision. The                 authorization while an extension of stay               days, while the employer’s timely filed,
                                           disruption of employment can create a                   petition is pending. In that                           extension of stay request remains
                                           burden for both employers and                           correspondence, DHS noted that it was                  pending.
                                           employees. As a matter of equity, it is                 not in the position to provide such                       One commenter proposed allowing an
                                           also important to ensure that CW–1                      authorization without a change to the                  employee who transfers to another
                                           nonimmigrants who are waiting for                       applicable regulations.10 Although DHS                 employer to continue to work pending
                                           USCIS to adjudicate their extension of                  believes that its implementing CW                      the adjudication of the new petition
                                           stay requests with the same employer                    regulations are consistent with                        with the prospective employer. DHS’s
                                           also benefit from the continued                         congressional intent, it subsequently                  proposed rule did not suggest continued
                                           employment authorization available to                   proposed improvements to the                           work authorization for CW–1
                                           other CW–1 nonimmigrants who change                     regulations to permit continued                        nonimmigrant workers seeking a change
                                           employers or an employee under the                      employment authorization during an                     of employment because DHS regulations
                                           previous CNMI immigration system.                       extension of stay request through this                 already allow continued work
                                           Current regulations for the continued                   notice and rulemaking, pursuant to its                 authorization for changes of
                                           employment of CW–1 nonimmigrant                         authority under the INA and the CNRA                   employment so long as certain
                                           workers are also inconsistent.                          to implement such regulations.11                       requirements are met. As described
                                           Specifically, the regulations currently                    One of the commenters also                          above, under 8 CFR 214.2(w)(7), a CW–
                                           only provide continued work                             supported the proposed change because                  1 nonimmigrant worker may work for a
                                           authorization for CW–1 nonimmigrant                     it will help both employers and                        prospective new employer after the
                                           workers seeking to change to a new                      employees in the CNMI by providing                     prospective employer files a non-
                                           employer, including a change in                         employers with more time to file                       frivolous Petition for a CNMI-Only
                                           employer resulting from early                           extension requests and by allowing                     Nonimmigrant Transitional Worker,
                                           termination, and not to CW–1                            employees to remain in lawful work-                    Form I–129CW, for new employment.
                                           nonimmigrants seeking an extension of                   authorized status while awaiting the                   The employer must file the petition for
                                           stay with the same employer. 8 CFR                      adjudication of the extension requests                 new employment to classify the alien as
                                                                                                   filed on their behalf. DHS appreciates                 a CW–1 nonimmigrant, before the CW–
                                           214.2(w)(7). This disparity may serve as
                                                                                                                                                          1 nonimmigrant worker’s authorized
                                           an incentive for CW–1 nonimmigrant                         7 See Commonwealth of the Northern Mariana          period of stay expires. The CW–1
                                           workers to change employers just to                     Islands Transitional Worker Classification, 74 FR      nonimmigrant worker must not have
                                           maintain continued employment                           55094 (Oct. 27, 2009).
                                                                                                                                                          worked without authorization in the
                                           authorization, which will                                  8 See Commonwealth of the Northern Mariana

                                                                                                   Islands Transitional Worker Classification;            United States since being admitted. If
                                           inconvenience the CW–1 nonimmigrant
                                                                                                   Reopening the Public Comment Period, 74 FR             the petitioner and CW–1 nonimmigrant
                                           worker’s current employer who might                     64997 (Dec. 9, 2009).                                  worker meet these conditions, then
                                           lose the worker to another employer.                       9 See Joint Letter to Alejandro Mayorkas, USCIS
                                                                                                                                                          employment authorization will continue
                                              One commenter strongly supported                     Director, from the Saipan Chamber of Commerce,
                                                                                                   the Hotel Association of the Northern Mariana          until DHS adjudicates the new petition.
                                           this proposed change and noted that                                                                               One commenter proposed allowing a
                                                                                                   Islands and the Society for Human Resource
                                           various employers previously sought to                  Management CNMI (Dec. 20, 2012).                       terminated employee to continue to
                                           have a continuing work authorization                       10 See Letter from Alejandro Mayorkas, USCIS
                                                                                                                                                          work without interruption, subject to
                                           provision included in the initial CW                    Director, to the Saipan Chamber of Commerce            certain conditions. DHS’s proposed rule
                                           regulations without success. The                        (March 7, 2013).
                                                                                                                                                          did not suggest continued work
                                                                                                      11 See Section 102 of the Homeland Security Act
                                           commenter stated that the DHS response                                                                         authorization for terminated CW–1
                                                                                                   of 2002, Public Law 107–296, 116 Stat. 2135, 6
                                           to this request then was that such                      U.S.C. 112, and INA 103(a), 8 U.S.C. 1103(a)           nonimmigrant workers because USCIS
                                           provision was not authorized by the                     (authorizes the Secretary to administer and enforce    regulations already allow for continued
                                           CNRA.6                                                  the immigration and nationality laws); INA 214(a),
                                                                                                                                                          work authorization for terminated CW–
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                                              DHS notes that the interim rule                      8 U.S.C. 1184(a) (authorizes the admission of
                                                                                                   nonimmigrants under such conditions as the             1 nonimmigrant workers under certain
                                           amending 8 CFR 214.2(w) to create the                   Secretary may prescribe by regulation); INA            circumstances. Under 8 CFR
                                                                                                   274A(h)(3)(B) (recognizes the Secretary’s authority    214.2(w)(7)(v), a terminated CW–1
                                             6 See Public Law 110–229, 122 Stat. 754, 853          to extend employment to individuals who are not
                                           (2008). Title VII of the CNRA (codified, in relevant    citizens or nationals of the United States); Public
                                                                                                                                                          nonimmigrant worker who has not
                                           part, at 48 U.S.C. 1806(d)) extends U.S. immigration    Law 110–229, 122 Stat. 754, 853 (2008) (extending      otherwise violated the terms and
                                           laws to the CNMI.                                       U.S. immigration laws to the CNMI).                    conditions of his or her status may work


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                                           2074               Federal Register / Vol. 81, No. 10 / Friday, January 15, 2016 / Rules and Regulations

                                           for a prospective new employer after the                initial and uninterrupted continued                    United States by boosting research,
                                           prospective employer files a non-                       employment of H–1B1 and E–3                            innovation, and development.
                                           frivolous Petition for a CNMI-Only                      nonimmigrants. The commenter added                        DHS appreciates the commenters’
                                           Nonimmigrant Transitional Worker,                       that the changes create equity for these               support for the comparable evidence
                                           Form I–129CW, for new employment.                       nonimmigrant categories as compared to                 provision based on the perceived
                                           However, the new employer must file                     other similar nonimmigrant categories                  positive effects on United States’
                                           the Petition for a Nonimmigrant Worker,                 for specialty workers. For reasons                     competitiveness and the Nation’s
                                           Form I–129CW, within a 30-day period                    previously stated, DHS will adopt this                 economy. DHS agrees with the
                                           after the date of termination.                          provision without change. Specifically,                commenters that the proposed
                                           Employment authorization then                           DHS will amend 8 CFR 214.1(c)(1) and                   comparable evidence provision may
                                           continues until DHS adjudicates the                     8 CFR 248.3(a) to add the E–3 and H–                   also help U.S. employers recruit EB–1
                                           new petition.                                           1B1 nonimmigrant classifications to the                outstanding professors and researchers.
                                              While the commenters supported the                   list of nonimmigrant classifications that                 A number of commenters supported
                                           continued employment authorization                      must file a petition with USCIS to                     expansion of the current list of
                                           for CW–1 nonimmigrant workers, they                     request an extension of stay or change                 evidentiary criteria for EB–1
                                           also offered specific suggestions                       of status. This updates the regulations                outstanding professors and researchers
                                           regarding various aspects of the CW–1                   so they conform to the filing procedures               to allow the submission of comparable
                                           transitional worker program. One                        described in the form instructions.                    evidence because it would harmonize
                                           commenter remarked that the continued                                                                          the EB–1 outstanding professor and
                                           work authorization provision merely                     F. Comparable Evidence for EB–1                        researcher regulations with those of
                                           provides a temporary solution to meet                   Outstanding Professors and Researchers                 other comparable employment-based
                                           the needs of the local investors, and that                 DHS received a number of comments                   immigrant classifications, eliminating
                                           a permanent immigration status is                       on the proposal to expand the current                  unwarranted disparities with respect to
                                           necessary. The commenter encouraged                     list of initial evidence for EB–1                      these policies. Commenters emphasized
                                           the immediate passage of U.S. Senate                    outstanding professors and researchers                 that the proposed comparable evidence
                                           bill S. 744 as a permanent solution to                  to allow petitioners to submit evidence                provision in turn would bring the
                                           this CNMI foreign worker situation.                     comparable to the other forms of                       criteria for proving eligibility for the
                                           Another commenter suggested that                        evidence already listed in 8 CFR                       outstanding professors and researchers
                                           foreign workers in the CNMI should be                   204.5(i)(3)(i).                                        classification in line with those that
                                           provided with a ‘‘better’’ immigration                                                                         have long been permitted for other
                                                                                                   1. Support
                                           status. The rulemaking focused on                                                                              preference categories such as EB–1
                                           continued employment authorization                         Most of the commenters on the EB–1                  aliens of extraordinary ability and EB–
                                           for certain CW–1s with timely filed                     comparable evidence provision                          2 aliens of exceptional ability. These
                                           extension of stay requests. The CW                      supported it, for a variety of reasons.                commenters stated that the proposed
                                           program as a whole was not a subject of                 They cited the perceived positive effects              change is a logical extension of the
                                           this rulemaking. These comments are                     on the United States, the need for                     existing regulatory provision listing the
                                           outside the scope of this rulemaking.                   harmonization of the regulations, and                  evidentiary criteria for EB–1
                                              DHS has determined that it will adopt                the need to submit evidence to allow                   outstanding professors and researchers,
                                           this provision without change, thereby                  beneficiaries to fully document their                  especially since the similarly situated
                                           automatically extending employment                      accomplishments. DHS notes that the                    EB–1 extraordinary ability
                                           authorization to CW–1 nonimmigrants                     same commenters remarked on more                       classification, which requires
                                           who have timely filed, pending                          than one aspect of the comparable                      satisfaction of a higher evidentiary
                                           extension of stay requests for the same                 evidence provision.                                    threshold, allows for consideration of
                                           employer. Specifically, DHS will add                       Specifically, commenters remarked                   comparable evidence.12
                                           the CW–1 nonimmigrant classification                    that the change would positively affect                  DHS appreciates commenters’ support
                                           to the list of employment-authorized                    the United States in a variety of ways.                for the comparable evidence provision
                                           nonimmigrant classifications, at 8 CFR                  Two commenters noted that the                          based on the harmonization of the
                                           274a.12(b)(20), that receive an automatic               comparable evidence provision would                    comparable regulations. DHS agrees that
                                           extension of employment authorization                   expand the number of individuals                       by allowing for the submission of
                                           of up to 240 days while the employer’s                  eligible for this classification and would             comparable evidence, DHS will bring
                                           timely filed extension of stay requests                 benefit the United States as a whole.                  the evidentiary standards of the EB–1
                                           remain pending. This will ensure that                   Some commenters noted that the                         outstanding professor and researcher
                                           the CW nonimmigrants are permitted                      comparable evidence provision will                     category in line with those currently
                                           continued employment authorization                      improve the ability of U.S. employers,                 available to individuals qualifying
                                           based on both pending change of                         especially higher education employers,                 under both the EB–1 extraordinary
                                           employers requests and pending                          to attract, recruit, and retain talented               ability and EB–2 exceptional ability
                                           extension of stay requests.                             foreign professors, researchers, and                   categories. This change in turn will
                                                                                                   scholars. One of these commenters                      provide equity for EB–1 outstanding
                                           E. Application Requirement for E–3 and                  added that this regulatory change will                 professors and researchers with other
                                           H–1B1 Nonimmigrants Requesting                          improve the capability to recruit and
                                           Changes of Status or Extensions of Stay                 retain talented individuals which                         12 The regulatory text stating when comparable

                                              DHS only received one comment on                     conduct the research that allows U.S.                  evidence may be submitted uses the term
                                                                                                                                                          ‘‘standards’’ when referring to the list of evidence
                                           the proposal to add principal E–3 and                   businesses to develop and sell products.
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                                                                                                                                                          that may be submitted to establish eligibility. See,
                                           H–1B1 nonimmigrants to the list of                      This improved capability to recruit                    e.g., 8 CFR 204.5(h)(4) and 8 CFR 204.5(k)(3)(iii).
                                           nonimmigrant classifications that must                  these individuals will help the U.S.                   Commenters, however, commonly used the term
                                           file a petition with USCIS to request an                economy’s growth. Another commenter                    ‘‘criteria’’ or ‘‘criterion’’ when referring to the
                                                                                                                                                          ‘‘comparable evidence’’ provisions and when
                                           extension of stay or change of status.                  added that refining the EB–1                           responding to DHS’s proposal to allow petitioners
                                           The commenter stated that the proposed                  outstanding professors and researchers                 to submit evidence comparable to the other forms
                                           changes, if adopted, will go far to enable              evidentiary list would benefit the                     of evidence already listed in 8 CFR 204.5(i)(3)(i).



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                                                              Federal Register / Vol. 81, No. 10 / Friday, January 15, 2016 / Rules and Regulations                                                      2075

                                           similarly situated individuals. This                    acceptable, regardless of whether any of               extraordinary ability and EB–2 aliens of
                                           change better enables petitioners to hire               the otherwise enumerated criteria apply,               exceptional ability, the standards for
                                           outstanding professors and researchers                  as long as the evidence is relevant to the             EB–1 outstanding professors and
                                           by providing a set of standards that are                merits of the case. This commenter                     researchers are tailored to only these
                                           flexible enough to comprehensively                      urged DHS to clarify this approach here,               two occupations.13 Thus, a petitioner for
                                           encompass all evidence that may                         as well as with certain employment-                    an outstanding professor or researcher
                                           demonstrate their satisfaction of the                   based classifications where comparable                 does not need to establish that a
                                           statutory standard. DHS notes that                      evidence is currently in use.                          particular standard is not readily
                                           although it is expanding the types of                      DHS appreciates the commenter’s                     applicable ‘‘to the beneficiary’s
                                           evidence that a petitioner may submit to                concern regarding adjudicative trends in               occupation’’ before they can rely on
                                           establish eligibility, this rulemaking                  how USCIS considers comparable                         comparable evidence. A petitioner for
                                           does not change the petitioner’s burden                 evidence. DHS regulations provide that                 an outstanding professor or researcher
                                           to establish eligibility under the                      petitions in the EB–1 extraordinary                    instead needs to establish that the
                                           preponderance of the evidence standard                  ability and EB–2 exceptional ability                   evidentiary standards listed in 8 CFR
                                           of proof.                                               classifications must establish that one or             204.5(i)(3)(i) do not readily apply to the
                                              A number of commenters supported                     more permissible standards are not                     evidence that the petitioner proposes to
                                           expanding the criteria for EB–1                         readily applicable to the beneficiary’s                submit before the petitioner can rely on
                                           outstanding professors and researchers                  occupation in order to rely on the                     the comparable evidence provision.
                                           because doing so would remove                           comparable evidence provision                             After establishing that the evidentiary
                                           evidentiary limitations and allow                       respective to those standards. See 8 CFR               standards listed in 8 CFR 204.5(i)(3)(i)
                                           employers to present full                               204.5(h)(4), (k)(3)(iii). Accordingly, if              does not readily apply to the evidence
                                           documentation of an employee’s                          any single evidentiary standard is                     he or she is submitting, the petitioner
                                           qualifications. One of these commenters                 inapplicable to the beneficiary’s                      may then submit alternative, but
                                           added that the language in the proposed                 occupation, the petitioner may submit                  qualitatively comparable evidence for
                                           rule was well drafted and broad enough                  alternative, but comparable, evidence                  those standards. The existing
                                           to include all evidence that may prove                  even though other standards may be                     evidentiary standards listed in 8 CFR
                                           outstanding achievement. Under current                  applicable to the beneficiary’s                        204.5(i)(3)(i) serve as a roadmap for
                                           regulation, petitioners need to fit                     occupation.                                            determining, among other things, the
                                           evidence into specific evidentiary                         For EB–1 outstanding professors and                 quantity and types of evidence that
                                           categories. For example, petitioners                    researchers, DHS confirms that a                       should be submitted in order for such
                                           have submitted funding grants as                        petitioner will be able to submit                      evidence to be considered
                                           documentation of major awards under 8                   comparable evidence instead of, or in                  ‘‘comparable.’’
                                           CFR 204.5(i)(3)(i)(A). In other instances,              addition to, evidence targeted at the                     Given the overwhelming support and
                                           petitioners may have omitted relevant                   standards currently listed in 8 CFR                    strong justification for the comparable
                                           evidence that could have helped to                      204.5(i)(3)(i) to demonstrate that the                 evidence provision as proposed, DHS
                                           demonstrate the beneficiary is                          beneficiary is internationally recognized              will adopt it and amend 8 CFR
                                           recognized internationally as                           as outstanding if the currently listed                 204.5(i)(3) to include a comparable
                                           outstanding, such as high salary and                    standards do not readily apply. The                    evidence provision.
                                           affiliation with prestigious institutions,              intent of this provision is to allow
                                                                                                                                                          2. Oppose
                                           because they did not believe it would fit               petitioners, in cases where evidence of
                                           into any of the regulatory evidentiary                  the beneficiary’s achievements do not fit                 Two commenters opposed the
                                           category. Commenters noted that the                     neatly into the enumerated list, to                    comparable evidence provision for
                                           proposed change adds necessary                          submit alternate, but qualitatively                    outstanding professors and researchers.
                                           flexibility; for instance, this change will             comparable, evidence. Under this                       One commenter indicated that they
                                           now potentially allow for the                           provision, a petitioner may submit                     opposed it because it will expand the
                                           submission of important patents, grant                  evidence falling within the standards                  number of eligible foreign nationals
                                           funding and other such achievements                     listed under 8 CFR 204.5(i)(3)(i), and                 competing for high-tech jobs. The
                                           that may not neatly fall into the                       may also use the comparable evidence                   commenter stated that many engineers,
                                           previously existing evidentiary                         provision to submit additional types of                computer professionals and scientists
                                           categories. Two of these commenters                     comparable evidence that is not listed,                are unemployed or under-employed and
                                           also commended DHS for recognizing                      or that may not be fully encompassed,                  asserted that the proposed change
                                           that the types of evidence relevant to the              in 8 CFR 204.5(i)(3)(i). DHS notes that
                                           determination of eligibility for this                   a petitioner’s characterization of                        13 In the proposed rule, DHS explained that the

                                                                                                   existing standards as ‘‘not readily                    aliens of extraordinary ability and aliens of
                                           classification have changed greatly since                                                                      exceptional ability classifications encompass a
                                           these evidentiary criteria were first                   applying’’ to the submitted evidence                   broad range of occupations (sciences, arts,
                                           created, and will continue to evolve                    will be considered in the totality of the              education, business, or athletics for extraordinary
                                           over time due to the changing needs of                  circumstances, but USCIS ultimately                    ability aliens; and the sciences, arts, or business for
                                                                                                   will determine which standard is                       exceptional ability aliens). See 79 FR 26870, 26880
                                           American businesses.                                                                                           (citing INA section 203(b)(1)(A), (2)(A)). Employers
                                              One of the commenters that supported                 satisfied, if any, by any form of                      filing petitions under such classifications may
                                           the comparable evidence provision also                  submitted evidence.                                    submit comparable evidence if they can establish
                                           expressed concern regarding how USCIS                      As noted in the proposed rule,                      that the standards listed in the regulation do not
                                           considers comparable evidence. The                      limiting submission of comparable                      directly apply to the beneficiary’s occupation. See
                                                                                                                                                          8 CFR. 204.5(h)(4), (k)(3)(iii). In contrast, the
                                           commenter reported that recent                          evidence for outstanding professors and
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                                                                                                                                                          outstanding professor or researcher classification
                                           decisions in other employment-based                     researchers only to instances in which                 involves only two overarching types of occupations,
                                           categories suggest that adjudicators                    the standards do not readily apply ‘‘to                and generally, the current evidentiary standards
                                           allow comparable evidence only when                     the alien’s occupation’’ would not                     readily apply to both. Therefore, the variance
                                                                                                                                                          between the regulatory text of comparable evidence
                                           none of the listed criteria apply. The                  adequately serve the goal of this                      provision for EB–1 outstanding professors and
                                           commenter added that comparable                         regulatory change because unlike the                   researchers and that provision for the other two
                                           evidence should be presumed                             standards for EB–1 aliens of                           categories is necessary.



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                                           2076               Federal Register / Vol. 81, No. 10 / Friday, January 15, 2016 / Rules and Regulations

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


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                                                               Federal Register / Vol. 81, No. 10 / Friday, January 15, 2016 / Rules and Regulations                                                2077

                                           determine whether these commenters                       and the protection of domestic workers’               evidence provision will not improve the
                                           suggested an automatic grant of the                      wage rights.                                          probability that an outstanding
                                           classification based on a U.S. earned                       DHS carefully considered the                       professor and researcher will qualify for
                                           doctoral degree or if the commenter                      commenters’ suggestions for initial and               the classification. The commenter
                                           suggested that the classification be                     additional evidence for the EB–1                      explained that adjudicators analyze this
                                           limited only to U.S. earned doctoral                     outstanding professors and researchers                classification under a two-part analysis,
                                           degree holders.                                          classification. DHS believes that the                 and therefore meeting the criteria is not
                                                                                                    evidence suggested in the comments                    enough to prove eligibility. Instead, the
                                              One of these commenters suggested
                                                                                                    above regarding minimum number of                     commenter suggested that DHS impose
                                           that DHS expand the list of initial
                                                                                                    years of experience and minimum                       a point- based system as an alternative,
                                           evidence to include a STEM doctoral                      education requirements generally would                transparent method for evaluating
                                           degree issued by a U.S. accredited                       not be beneficial in an analysis of                   whether these individuals are eligible
                                           university, and that DHS could publish                   whether an individual is internationally              for the classification. The commenter
                                           a list of U.S. accredited universities to                recognized as outstanding in his or her               added that this would eliminate any
                                           make the criteria more transparent. The                  academic field. The purpose of the                    subjectivity in the process and allow a
                                           commenter explained that a petitioner                    proposed comparable evidence                          researcher or petitioner to predict
                                           could satisfy the proposed criteria by                   provision is to allow petitioners to                  whether he or she meets or does not
                                           submitting an ‘‘attested copy’’ 14 of the                present evidence that, although not on                meet the criteria.
                                           STEM degree certificate and an                           the enumerated list, may still serve to                  DHS disagrees with the commenter’s
                                           unopened transcript from the                             demonstrate that the professor or                     assertion that the proposed comparable
                                           university, to mirror the current criteria               researcher is internationally recognized              evidence provision will not benefit
                                           set forth for EB–2 petitions. The                        as outstanding. DHS appreciates that to               petitioners and these specific foreign
                                           commenter added that this suggestion                     achieve this goal, the standards listed in            workers. The stated purpose of the
                                           would provide a pathway for U.S.                         8 CFR 204.5(i)(3)(i) need to have some                proposed comparable evidence
                                           trained doctoral degree holders to stay                  measure of flexibility so they may                    provision is to allow petitioners to
                                           in the United States, allowing the                       continue to evolve over time in response              submit additional types of evidence and
                                           United States to retain technical                        to U.S. business needs and/or the                     to fully document the beneficiary’s
                                           excellence and continue its leadership                   changing nature of certain work                       international recognition as an
                                           in technology. The commenter also                        environments or practices. It is not                  outstanding professor or researcher in
                                           suggested that DHS could set parameters                  clear, however, whether the                           order to demonstrate eligibility for the
                                           for eligibility criteria based on salary,                commenters’ suggestions regarding                     requested classification. However, this
                                           and that a petitioner could satisfy this                 minimum number of years of                            proposal does not change the eligibility
                                           requirement by submitting occupational                   experience, minimum education                         standard for this classification. The
                                           employment statistics from the Bureau                    requirements, and salary requirements                 petitioner must still demonstrate, by a
                                           of Labor Statistics (BLS). The                           are intended to limit or expand the                   preponderance of the evidence, that the
                                           commenter suggested that eligible EB–1                   current evidentiary criteria for EB–1                 beneficiary is recognized internationally
                                           workers should have wages that are                       outstanding professors or researchers. If             as outstanding in the specific academic
                                           greater than the 75th percentile of the                  they were intended to limit the criteria,             area.
                                           BLS wage figures for their occupation,                   then the commenters’ suggestions                         The commenter correctly asserted that
                                           such that beneficiaries making greater                   would have the effect of narrowing the                adjudicators analyze this classification
                                           than $100,000 a year would satisfy the                   eligibility criteria by requiring very                using a two-part approach. The USCIS
                                           criteria, a requirement the commenter                    specific evidence that is possessed by a              policy memo, Evaluation of Evidentiary
                                           believes would mirror the current                        specific subset of the potential                      Criteria in Certain I–140 Petitions,
                                           criteria set forth for EB–1, Aliens of                   population of outstanding professors                  provides instructions to adjudicators
                                           Extraordinary Ability.15 The commenter                   and researchers. In direct contrast, the              regarding application of a two-step
                                           believes this suggestion would alleviate                 intended purpose of the comparable                    analysis for purposes of adjudicating
                                           any concerns regarding financial                         evidence provision is to provide                      extraordinary ability, outstanding
                                           exploitation of the immigrant worker                     flexibility for this population. If the               professor and researcher, and
                                                                                                    commenter’s suggestions, however,                     exceptional ability Form I–140
                                              14 The commenter references the evidentiary           were intended to expand the type of                   petitions.17 The commenter stated that
                                           requirements for the EB–2, Members of Professions        evidence that may be considered, that                 given this two-step analysis, a
                                           Holding Advanced Degrees or Aliens of Exceptional        suggestion is consistent with the                     beneficiary may satisfy at least two of
                                           Ability. The relevant provision at 8 CFR
                                           204.5(k)(3)(i)(A) requires an ‘‘official academic
                                                                                                    purpose of the comparable evidence                    the outstanding professor and researcher
                                           record showing that the alien has a United States        provision as it provides needed                       regulatory standards but fail to prove
                                           advanced degree or a foreign equivalent degree.’’        flexibility to establish eligibility.                 eligibility. DHS believes that whether or
                                           Therefore, in this context, DHS infers that ‘‘attested   Therefore, DHS declines to adopt these                not a beneficiary ultimately may prove
                                           copy’’ is a reference to ‘‘an official academic
                                           record.’’
                                                                                                    suggestions as amendments to the                      eligibility by providing evidence
                                              15 The commenter references the evidentiary           standards listed in 8 CFR 204.5(i)(3)(i)              satisfying at least two of the listed
                                           requirements for the EB–1, Aliens of Extraordinary       in favor of a broad comparable evidence               regulatory criteria is not a material
                                           Ability. The relevant provision at 8 CFR                 provision.16                                          question in considering whether to add
                                           204.5(h)(3)(ix) requires ‘‘evidence that the alien has      One commenter expressed concern                    this comparable evidence provision.
                                           commanded a high salary or other high
                                           remuneration for services, in relation to others in      that adding the proposed comparable                   Instead, by allowing submission and
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                                           the field.’’ In contrast, the evidentiary requirements
                                           for the EB–1, Outstanding Professors and                   16 Although DHS will not amend the regulations        17 See USCIS Policy Memorandum, ‘‘Evaluation

                                           Researchers, at 8 CFR 204.5(i)(3) does not contain       to add these very specific suggestions, please note   of Evidence Submitted with Certain Form I–140
                                           a high salary criterion. DHS may consider any            that the comparable evidence provision is             Petitions; Revisions to the Adjudicator’s Field
                                           evidence submitted in the totality of the                sufficiently broad to permit consideration of the     Manual (AFM) Chapter 22.2, AFM Update AD11–
                                           circumstances to determine whether an individual         evidence described in the comments, so long as the    14’’ (Dec. 22, 2010), available at http://
                                           is internationally recognized as an outstanding          previously described requirements of the provision    www.uscis.gov/USCIS/Laws/Memoranda/i-140-
                                           professor or researcher.                                 are satisfied.                                        evidence-pm-6002-005-1.pdf.



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                                           2078                Federal Register / Vol. 81, No. 10 / Friday, January 15, 2016 / Rules and Regulations

                                           consideration of comparable evidence,                    describe the array of individuals and                  1B1, and CW–1 nonimmigrant workers
                                           which does not exist under current                       entities that may file petitions under 8               up to 240 days of continued work
                                           regulation, this rule promises to offer                  CFR 214.2 and the term ‘‘petitioner’’ is               authorization beyond the expiration
                                           petitioners a more meaningful                            a much more accurate descriptor. DHS                   date noted on their Arrival Departure
                                           opportunity to establish a beneficiary’s                 agrees that the term ‘‘petitioner’’ is a               Record, Form I–94, provided that their
                                           eligibility. Thus, although DHS                          more accurate depiction of the                         extension of stay request is timely filed.
                                           recognizes that satisfaction of the newly                individual who may file in a variety of                Employers or petitioners are already
                                           added provision will not guarantee                       scenarios. Additionally, this change will              required to submit an extension of stay
                                           approval for the classification, if                      generally eliminate inconsistency                      for such nonimmigrant classifications in
                                           petitioners submit evidence that indeed                  between the change of status and                       order to extend their status beyond the
                                           is comparable and points to                              extension of stay provisions and the                   expiration date noted on their Arrival
                                           international recognition for being                      classification-specific provisions in 8                Departure Record, Form I–94.
                                           outstanding in the field, that evidence                  CFR 214.2. This change will eliminate                  Permitting continued employment
                                           may improve the probability that the                     any confusion that the current                         while the extension of stay request is
                                           petition will be approved under the                      inconsistency between these provisions                 pending with USCIS places principal E–
                                           existing framework.                                      may have caused. DHS will adopt this                   3, H–1B1, and CW–1 nonimmigrant
                                              DHS appreciates the suggestion for an                 provision without change.                              workers on par with other, similarly
                                           alternative framework for analysis of the                IV. Statutory and Regulatory                           situated nonimmigrants. The provisions
                                           EB–1 outstanding professors and                          Requirements                                           will not result in any additional
                                           researchers classification, but DHS                                                                             compliance costs, burdens, or
                                           declines to adopt the suggested point-                   A. Executive Orders 12866 and 13563                    procedures for the U.S. employer or the
                                           based system as it would require a much                     Executive Orders 12866 and 13563                    workers.
                                           broader reshaping of the current                         direct agencies to assess the costs and                   Additionally, DHS will allow
                                           immigration system. This suggestion                      benefits of available regulatory                       petitioners of EB–1 outstanding
                                           would require a wholesale rulemaking                     alternatives and, if regulation is                     professors and researchers to submit
                                           for all the other classifications, which is              necessary, to select regulatory                        comparable evidence, instead of or in
                                           beyond the scope of this rulemaking.                     approaches that maximize net benefits                  addition to the evidence listed in 8 CFR
                                              DHS declines to adopt the suggestions                 (including potential economic,                         204.5(i)(3)(i), to demonstrate that the
                                           for initial evidence, additional evidence,               environmental, public health and safety                professor or researcher is recognized
                                           and an alternative framework. As                         effects, distributive impacts, and                     internationally as outstanding in his or
                                           previously noted, DHS is tailoring this                  equity). Executive Order 13563                         her academic field. Allowing
                                           regulation to provide EB–1 outstanding                   emphasizes the importance of                           comparable evidence for EB–1
                                           professors and researchers with a                        quantifying both costs and benefits,                   outstanding professors and researchers
                                           comparable evidence provision that                       reducing costs, harmonizing rules, and                 will match the evidentiary requirements
                                           mirrors the other employment-based                       promoting flexibility. This rule has not               with those of similarly situated
                                           immigrant categories that already allow                  been designated a ‘‘significant                        employment-based immigrant
                                           for submission of comparable evidence.                   regulatory action,’’ under section 3(f) of             classifications.
                                                                                                    Executive Order 12866. Accordingly,
                                           G. Miscellaneous Comments                                                                                          DHS notes that the above-referenced
                                                                                                    the rule has not been reviewed by the
                                              One commenter requested                               Office of Management and Budget                        changes are part of DHS’s Retrospective
                                           clarification as to whether the changes                  (OMB).                                                 Review Plan for Existing Regulations
                                           proposed in this rule would affect                          This analysis updates the estimated                 under Executive Order 13563.18 During
                                           processing times for family immigration.                 costs and benefits discussed in the                    the development of DHS’s Retrospective
                                           The commenter did not state which                        proposed rule. This final rule will not                Review Plan for Existing Regulations in
                                           aspects of the proposed changes he or                    impose any additional compliance costs                 2011, DHS received one comment in
                                           she believes could impact family                         on employers, individuals, or                          response to the 2011 publication.19 DHS
                                           immigration processing times. While                      government entities, and will not                      received more comments again in
                                           there is always a possibility that                       require additional funding for the                     response to the 2014 publication. These
                                           changes to one USCIS business process                    Federal Government. However, DHS                       public comments requested specific
                                           may trigger unanticipated downstream                     notes that there could be additional                   changes to the DHS regulations that
                                           effects on other USCIS business                          familiarization costs as employers read                govern continued work authorization for
                                           processes, DHS does not anticipate that                  the final rule in the Federal Register to              principal E–3 and H–1B1
                                           changes made by this rule will have a                    understand the benefits that this rule                 nonimmigrants when an extension of
                                           direct impact on family based                            will provide. Also, USCIS may spend a                  status petition is timely filed, and
                                           immigration processing times.                            de minimis amount of time updating                     requested that DHS expand the types of
                                              Another commenter supported DHS’s                     training materials, but USCIS does not                 evidence allowable in support of
                                           replacement of the more narrow term                      expect to hire additional personnel as a               immigrant petitions for outstanding
                                           ‘‘employer’’ with the more general term                  result of this rule. The final rule will               researchers or professors. This rule
                                           ‘‘petitioner’’ in reference to who may                   make certain changes to the regulations                responds to these comments according
                                           file a request to change or extend status                governing the E–3, H–1B1, and CW–1                     to the retrospective review principles of
                                           under 8 CFR 214.1(c)(1) and 248.3(a).                    nonimmigrant worker classifications.                   Executive Order 13563.
                                           The commenter explained that the term                    Specifically, DHS will amend the                          The costs and benefits of the final rule
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                                           ‘‘employer’’ does not adequately                         regulation to allow principal E–3, H–                  are summarized in Table 2.

                                             18 See U.S. Department of Homeland Security            published update on DHS actions with respect to        International Educators, to Ivan K. Fong, General
                                           Retrospective Review of Existing Regulations—            Retrospective Review.                                  Counsel, DHS (Apr. 13, 2011), available at http://
                                           Progress Report (Feb. 2015), available at http://          19 See Letter from Marlene M. Johnson, Executive     www.nafsa.org/uploadedFiles/
                                           www.dhs.gov/publication/february-2015-                                                                          DHSregreviewcommentApr122011%20public.pdf.
                                                                                                    Director and CEO of NAFSA: Association of
                                           retrospective-review-plan-report for the latest



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                                                                    Federal Register / Vol. 81, No. 10 / Friday, January 15, 2016 / Rules and Regulations                                                           2079

                                                                                                      TABLE 2—SUMMARY OF COSTS AND BENEFITS
                                                                        Costs                                                     Change                                           Benefits and Avoided Costs

                                                                                                                                            E3, H–1B1, and CW–1 Nonimmigrants

                                           Minimal costs associated with reading the rule                   Continued employment authorization of up to               Avoided cost of lost productivity for U.S. em-
                                             to understand the benefits that will accrue to                   240 days for an H–1B1, principal E–3, or                  ployers of principal E–3, H–1B1, and CW–1
                                             employers and workers. This rule does not                        CW–1 nonimmigrant worker while a timely                   nonimmigrant workers. Not quantified.
                                             impose any additional compliance costs.                          filed extension of stay petition is pending.            Would provide equity for principal E–3 and H–
                                                                                                                                                                        1B1 nonimmigrants relative to other em-
                                                                                                                                                                        ployment-based nonimmigrants listed in 8
                                                                                                                                                                        CFR 274a.12.(b)(20) and provides equity
                                                                                                                                                                        for CW–1 nonimmigrant workers whose ex-
                                                                                                                                                                        tension is filed by the same employer, simi-
                                                                                                                                                                        lar to other CW–1 nonimmigrant workers
                                                                                                                                                                        who change employers. Qualitative benefit.
                                                                                                            Clarify that principal E–3 and H–1B1 non-                 Ensures the regulations are consistent with
                                                                                                              immigrants are work authorized incident to                statutory authority and codifies current prac-
                                                                                                              status, and specify current filing procedures             tice.
                                                                                                              for requesting change of status or extension
                                                                                                              of stay.

                                                                                                                                EB–1 Outstanding Professor and Researcher Classification

                                                                                                            Allow the use of comparable evidence to that              May help U.S. employers recruit EB–1 out-
                                                                                                              listed in 8 CFR 204.5(i)(3)(i)(A)–(F) to es-             standing professors and researchers for
                                                                                                              tablish that the EB–1 professor or re-                   U.S. employers. Not quantified.
                                                                                                              searcher is recognized internationally as               Would provide equity for EB–1 outstanding
                                                                                                              outstanding in his or her academic field.                professors and researchers relative to cer-
                                                                                                                                                                       tain 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
                                                                                                                                                              Maximum
                                                                                      Beneficiary                         Immigration                                                                   Annual
                                                     Visa type                                                                                                duration of
                                                                                      restrictions                          status                                                                    limitations
                                                                                                                                                                 stay

                                           E–3 ..............................   Nationals of Australia ..       Nonimmigrant (temporary em-           2 years, potentially in-           10,500 20.
                                                                                                                  ployment).                            definite extensions.
                                           H–1B1 ..........................     Nationals of Chile or           Nonimmigrant (temporary em-           1 year, potentially in-            1,400 for Chilean nationals;
                                                                                 Singapore.                       ployment).                            definite extensions.               5,400 for Singaporean nation-
                                                                                                                                                                                           als.
                                           CW–1 ...........................     Limited to workers in           Nonimmigrant (temporary em-           1 year, extensions                 Maximum of 12,999 in fiscal
                                                                                  the CNMI during the             ployment during transition pe-        available through                  year (FY) 2016.
                                                                                  transition to U.S.              riod).                                December 31, 2019.
                                                                                  Federal immigration
                                                                                  regulations.
                                           EB–1 outstanding pro-                Professors and re-              Immigrant (permanent residence        None ...........................   Apportioned from the approxi-
                                            fessor and re-                        searchers (any na-              and employment).                                                         mate 40,040 generally avail-
                                            searcher.                             tionality) who are                                                                                       able annually to first pref-
                                                                                  recognized inter-                                                                                        erence employment-based im-
                                                                                  nationally as out-                                                                                       migrant visas.
                                                                                  standing in their aca-
                                                                                  demic area.



                                           1. E–3 and H–1B1 Nonimmigrant                                  nonimmigrants want to ensure                               of the individual employee’s stay well
                                           Workers                                                        continued employment authorization                         before the initial authorized period of
                                                                                                          throughout the period that the extension                   stay expires. The Petition for a
                                             Under current regulations, if
                                                                                                          request is pending, they generally must                    Nonimmigrant Worker, Form I–129, is
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                                           employers of E–3 or H–1B1
                                                                                                          file a petition requesting the extension                   used to request extensions of stay for
                                             20 In accordance with INA section 214(g)(11)(C),             not extend to spouses or children of the principal         these nonimmigrant workers. Currently,
                                           this limit only applies to principal E–3s and does             alien.                                                     the petitioner may file a request for




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                                           2080                     Federal Register / Vol. 81, No. 10 / Friday, January 15, 2016 / Rules and Regulations

                                           extension of stay as early as 6 months                                  authorization to continue employment                    Additionally, this provision may allow
                                           before the authorized period of stay                                    for up to 240 days, employers or                        employers of principal E–3 and H–1B1
                                           expires. As of December 31, 2014, the                                   petitioners must timely file the Petition               nonimmigrant workers to avoid the cost
                                           average processing time for USCIS to                                    for Nonimmigrant Worker, Form I–129.                    of lost productivity that results from
                                           adjudicate these extension requests is 2                                Since employers are already required to                 interruptions of work while an
                                           months.21 However, if the principal E–                                  file the Petition for Nonimmigrant                      extension of stay request is pending.
                                           3 or H–1B1 nonimmigrant worker’s                                        Worker, Form I–129, in order to request
                                                                                                                                                                             Table 4 shows that USCIS received a
                                           authorized period of stay expires before                                an extension of stay on behalf of the
                                           USCIS grants the extension request, the                                 nonimmigrant worker, there are no                       total of 5,294 extension of stay requests
                                           worker cannot continue to work while                                    additional filing requirements or costs                 for H–1B1 and principal E–3
                                           his or her extension request remains                                    for employers or petitioners to comply                  nonimmigrant workers in the FYs from
                                           pending.                                                                with in this final rule. DHS notes there                2010 through 2014 (an average of 1,059
                                             In this rule, DHS amends its                                          are minimal familiarization costs to                    requests per year). USCIS approved
                                           regulations to permit principal E–3 and                                 employers associated with reading the                   4,026 extensions of stay requests in the
                                           H–1B1 nonimmigrants to continue their                                   rule in the Federal Register to                         same period (an average of 805 per
                                           employment with the same employer for                                   understand the benefits of the rule. The                year). Extension of stay requests
                                           up to 240 days after their authorized                                   benefits of the final rule will be to                   received and petition approvals are not
                                           period of stay expires (as specified on                                 provide equity for principal E–3 and H–                 meant for direct comparison because
                                           their Arrival-Departure Record, Form I–                                 1B1 nonimmigrants relative to other                     USCIS may receive a petition in one
                                           94) while requests for extension of stay                                employment-based nonimmigrants                          year but make a decision on it in
                                           on their behalf are pending. To obtain                                  listed in 8 CFR 274a.12.(b)(20).                        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                                   period of stay expires, as noted on the                 clarifications are consistent with current
                                           either: (a) the number of cases where                                   nonimmigrant worker’s Arrival                           practice.
                                           principal E–3 and H–1B1                                                 Departure Record, Form I–94.
                                                                                                                                                                           2. CW–1 Nonimmigrant Workers
                                           nonimmigrants are unable to continue                                    Unfortunately, DHS did not receive
                                           employment with their employer                                          statistics or data from impacted                           This provision of the final rule will
                                           because their employer’s timely petition                                stakeholders that permit us to                          apply to the CW–1 classification, which
                                           for an extension of stay was not                                        quantitatively estimate the benefits of                 is issued solely to nonimmigrant
                                           adjudicated before their authorized                                     this rule.                                              workers in the CNMI. The CW–1
                                           period of stay expired, or (b) how long                                    In addition, DHS is amending the                     nonimmigrant visa classification was
                                           principal E–3 and H–1B1                                                 regulations to codify current practices.                created to allow certain workers who are
                                           nonimmigrants were unable to work                                       Specifically, DHS is amending 8 CFR                     otherwise ineligible for any other
                                           when their employer’s timely petition                                   274a.12(b) to clarify in the regulations                nonimmigrant visa classification under
                                           for an extension of stay was not                                        that the principal E–3 and H–1B1                        the INA to work in the CNMI during the
                                           adjudicated before their authorized                                     nonimmigrant classifications are                        transition period to the U.S. Federal
                                           period of stay expired.22 Because of this                               employment authorized incident to                       immigration system. This transition
                                           data limitation, we are unable to                                       status with a specific employer. DHS is                 period was set to end on December 31,
                                           quantify the total aggregate estimated                                  also amending 8 CFR 214.1(c)(1) and 8                   2014. On June 3, 2014, the U.S.
                                           benefits of this provision of the rule.                                 CFR 248.3(a) to add the principal E–3                   Secretary of Labor exercised statutory
                                           The rule, however, will benefit U.S.                                    and H–1B1 nonimmigrant                                  responsibility and authority by
                                           employers to the extent that this rule                                  classifications to the list of                          extending the CW transitional worker
                                           allows U.S. employers to avoid                                          nonimmigrant classifications that must                  program for an additional 5 years,
                                           interruptions in productivity that could                                file a petition with USCIS to make an                   through December 31, 2019.23
                                           result if the timely extension of stay is                               extension of stay or change of status                      CW–1 nonimmigrant workers may be
                                           not adjudicated before the authorized                                   request. Again, both of these regulatory                initially admitted to the CNMI for a
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                                             21 See USCIS Processing Time Information,                                22 USCIS acknowledges that in part 3 of the            23 See Secretary of Labor Extends the Transition

                                           available at https://egov.uscis.gov/cris/                               Petition for a Nonimmigrant Worker, Form I–129,         Period of the Commonwealth of the Northern
                                           processTimesDisplayInit.do. The USCIS California                        information is collected about the beneficiary that     Mariana Islands-Only Transitional Worker Program,
                                           Service Center and Vermont Service Center                               is currently in the United States. While this           79 FR 31988 (June 3, 2014).
                                           adjudicate Petition for a Nonimmigrant Worker,                          information is collected and considered for the
                                           Form I–129, extension of stay requests for E and H–                     purposes of adjudicating the petition, this
                                           1B nonimmigrants.                                                       information is not captured in a database.



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                                                               Federal Register / Vol. 81, No. 10 / Friday, January 15, 2016 / Rules and Regulations                                                            2081

                                           period of 1 year, and USCIS may grant                    TABLE 5—NUMERICAL LIMITATIONS OF                              Additionally, DHS did not receive data
                                           extensions in 1-year increments until                          CW–1 CLASSIFICATIONS                                    or additional information from impacted
                                           the end of the transition period. The                                                                                  stakeholders that would permit DHS to
                                           CW–1 nonimmigrant visa classification                                  FY                         Numerical Limit      quantitatively estimate the benefits of
                                           is valid only in the CNMI and does not                                                                                 this rule as it relates to CW–1
                                           require any certification from the DOL.                 2011   ................................              22,417    nonimmigrant workers in the CNMI.
                                              DHS has determined that current                      2012   ................................              22,416    DHS believes, however, that the
                                           regulations contain an inconsistency.                   2013   ................................              15,000    inconsistent treatment of employment
                                                                                                   2014   ................................              14,000
                                           While current regulations provide                                                                                      authorization for CW–1 nonimmigrant
                                                                                                   2015   ................................              13,999
                                           continued work authorization for CW–1                   2016   ................................              12,999    workers could have created hardships to
                                           nonimmigrant workers while petitions                                                                                   the CNMI labor force.27
                                           for a change of employers are pending                     DHS set the numerical limit of CW–
                                           and for certain beneficiaries of initial                                                                               3. EB–1 Outstanding Professors and
                                                                                                   1 nonimmigrant workers at 14,000 for                           Researchers
                                           CW transitional worker petitions filed                  FY 2014 and petitioning employers filed
                                           on or before November 27, 2011,                         initial petitions for 1,133 beneficiaries;                        For the EB–1 outstanding professor
                                           continued work authorization is not                     extension of stay requests from the same                       and researcher immigrant classification,
                                           currently provided for CW–1                             employer for 8,952 beneficiaries; and                          under current regulations, a petitioner
                                           nonimmigrant workers requesting                         extension of stay requests from new                            must submit initial evidence to
                                           extensions of stay with the same                        employers for an additional 1,298                              demonstrate that the beneficiary is
                                           employer. This inconsistency in the                     beneficiaries.25 The population affected                       recognized internationally as
                                           regulations may create an incentive for                 by this provision of the final rule will                       outstanding in his or her specific
                                           CW–1 nonimmigrant workers to change                     be those CW–1 nonimmigrant workers                             academic field. The type of evidence
                                           employers, as they would have the                       whose subsequent extensions of stay                            that is required is outlined in 8 CFR
                                           advantage of uninterrupted work                         requests are filed by the same employer.                       204.5(i)(3).
                                           authorization.                                          Accordingly, if this proposal were in                             To demonstrate that the EB–1
                                              DHS is revising the regulations to                   place in FY 2014, all of the 8,952 CW–                         professor or researcher is recognized
                                           allow for equitable treatment of CW–1                   1 nonimmigrant workers with extension                          internationally as outstanding in his or
                                           nonimmigrant workers who remain with                    of stay requests with the same employer                        her academic field, DHS, through this
                                           the same employer by extending                          would have received the continued 240-                         rulemaking, is allowing petitioners to
                                           continued employment authorization                      day employment authorization, if                               substitute comparable evidence
                                           for up to 240 days while a timely filed,                necessary, generally putting these                             (examples might include award of
                                           pending request for an extension of stay                workers on par with CW–1                                       important patents and prestigious, peer-
                                           with the same employer is being                         nonimmigrant workers with extension                            reviewed funding or grants) for the
                                           adjudicated. As with the similar                        of stay requests for new employers.                            evidence listed in 8 CFR
                                           proposal in this rule regarding H–1B1                     This provision will not impose any                           204.5(i)(3)(i)(A)—(F). See 8 CFR
                                           and principal E–3 nonimmigrants,                        additional costs on any petitioning                            204.5(i)(3)(ii). The other requirements
                                           current employers of CW–1                               employer or for CW–1 nonimmigrant                              remain unchanged. DHS made this
                                           nonimmigrant workers may also avoid                     workers. The benefits of this final rule                       change in response to stakeholder
                                           productivity losses that could occur if a               will be that DHS will treat CW–1                               concerns that the current evidentiary
                                           CW–1 nonimmigrant worker cannot                         nonimmigrant workers whose extension                           list is dated and may not allow the
                                           continue employment while the timely                    of stay request is timely filed by the                         beneficiary to present the full
                                           filed extension request is pending.                     same employer similar relative to other                        documentation of their achievements.28
                                              The CW–1 nonimmigrant                                CW–1 nonimmigrant workers whose                                   By allowing for comparable evidence,
                                           classification is temporary. DHS has                    request is timely filed by a new                               DHS will harmonize the evidentiary
                                           established numerical limitations on the                                                                               requirements of the EB–1 outstanding
                                                                                                   employer. Additionally, this provision
                                           number of CW–1 nonimmigrant                                                                                            professor and researcher category with
                                                                                                   will mitigate any potential distortion in
                                           classifications that may be granted (see                                                                               those currently available to the EB–1
                                                                                                   the labor market for employers of CW–
                                           Table 5). The numerical limitations                                                                                    extraordinary ability category as well as
                                                                                                   1 nonimmigrant workers created by the
                                           apply to both initial petitions and                                                                                    the EB–2 category for a person of
                                                                                                   differing provisions for retained workers
                                           extension of stay requests, including                                                                                  exceptional ability.
                                                                                                   versus provisions for workers changing                            This provision of the final rule will
                                           change of employer petitions, in a given                employers and prevent a potential loss
                                           FY. DHS has set the numerical                                                                                          not create additional costs for any
                                                                                                   of productivity for current employers.                         petitioning employer or for the EB–1
                                           limitation for CW–1 nonimmigrant                        Under current law, these benefits would
                                           workers at 12,999 for FY 2016.24                                                                                       outstanding professor and researcher
                                                                                                   be limited in duration, as the transition                      classification. The benefits of this
                                              24 See Commonwealth of the Northern Mariana
                                                                                                   period in which CW–1 nonimmigrant                              provision are qualitative, as it will treat
                                           Islands (CNMI)-Only Transitional Worker
                                                                                                   worker classifications are issued is now                       EB–1 outstanding professors and
                                           Numerical Limitation for Fiscal Year 2016, 80 FR        scheduled to end on December 31, 2019.                         researchers the same as certain other
                                           63911 (Oct. 22, 2015). On June 3, 2014, the             Unfortunately, USCIS does not have                             individuals who seek similar
                                           Secretary of Labor exercised statutory responsibility   data to permit a quantitative estimation
                                           and authority by extending the CW transitional
                                           worker program for an additional 5 years, through
                                                                                                   of the benefits 26 of this provision.                            27 See Joint letter to the Director, USCIS, from the

                                           December 31, 2019. See Secretary of Labor Extends                                                                      Saipan Chamber of Commerce, the Hotel
                                           the Transition Period of the Commonwealth of the          25 Source: USCIS Office of Performance and                   Association of the Northern Mariana Islands and
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                                           Northern Mariana Islands-Only Transitional Worker       Quality, January, 2015.                                        the Society for Human Resource Management CNMI
                                           Program, 79 FR 31988 (June 3, 2014).                      26 The aggregate value of benefits would depend              (Dec. 20, 2012).
                                              Source: FYs 2011 and 2012, 8 CFR 214(w)(viii).       on several non-quantifiable factors including: the               28 See Letter from Marlene M. Johnson, Executive

                                           FY 2013, Federal Register volume 77, no. 231, page      number of CW–1 workers prompted to change                      Director and CEO of NAFSA: Association of
                                           71287. FY 2014, Federal Register volume 78, no.         employment because of the automatic extension                  International Educators, to Ivan K. Fong, General
                                           186, page 58867. FY 2015 Federal Register volume        versus those changing for reasons of promotion and             Counsel, DHS (Apr. 13, 2011), available at http://
                                           79, no. 188, page 58241. FY 2016 Federal Register       advancement or termination by their previous                   www.nafsa.org/uploadedFiles/
                                           volume 80, no. 204, page 63911.                         employer.                                                      DHSregreviewcommentApr122011%20public.pdf.



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                                           2082                      Federal Register / Vol. 81, No. 10 / Friday, January 15, 2016 / Rules and Regulations

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

                                                  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                                             governmental jurisdictions with                          timely filed. This will provide increased
                                           from impacted stakeholders, such as                                         populations of less than 50,000. This                    flexibilities for the U.S. petitioning
                                           employers or prospective employers of                                       final rule revises regulations to allow for              employers without imposing any
                                           an EB–1 outstanding professor or                                            additional flexibilities; harmonizes the                 additional costs or compliance
                                           researcher, providing information or                                        conditions of employment of principal                    procedures.
                                           data that would enable DHS to calculate                                     E–3, H–1B1, and CW–1 nonimmigrant                           Based on the foregoing, DHS certifies
                                           the resulting benefits of this provision.                                   workers with other, similarly situated                   that this rule will not have a significant
                                           DHS did not receive any data on this                                        nonimmigrant categories; and                             economic impact on a substantial
                                           request that would allow DHS to                                             harmonizes the allowance of                              number of small entities.
                                           calculate quantitative benefits of this                                     comparable evidence for EB–1
                                           regulatory change. As indicated earlier                                     outstanding professors and researchers                   C. Unfunded Mandates Reform Act of
                                           in the preamble, DHS did receive                                            with evidentiary requirements of other                   1995
                                           comments suggesting that this change                                        similar employment-based immigrant                         This final rule will not result in the
                                           will benefit both U.S. employers that are                                   categories. As discussed previously,                     expenditure by State, local and tribal
                                           petitioning for outstanding professors                                      DHS does not anticipate that the                         governments, in the aggregate, or by the
                                           and researchers, and the individuals                                        additional provisions will result in                     private sector, of $100 million or more
                                           seeking immigration status under this                                       additional compliance costs for                          in any 1 year, and it will not
                                           classification.                                                             impacted U.S. employers, including any                   significantly or uniquely affect small
                                                                                                                       small entities, other than the minimal                   governments. Therefore, no actions were
                                           B. Regulatory Flexibility Act
                                                                                                                       costs associated with reading and                        deemed necessary under the provisions
                                             The Regulatory Flexibility Act of 1980                                    becoming familiar with benefits offered                  of the Unfunded Mandates Reform Act
                                           (RFA), 5 U.S.C. 601–612, as amended by                                      by the rule.                                             of 1995.
                                           the Small Business Regulatory                                                  As discussed extensively in the
                                           Enforcement Fairness Act of 1996,                                           regulatory assessment for Executive                      D. Small Business Regulatory
                                           Public Law 104–121 (March 29, 1996),                                        Orders 12866 and 13563 and elsewhere                     Enforcement Fairness Act of 1996
                                           requires Federal agencies to consider                                       throughout the preamble, this final rule                    This final rule is not a major rule as
                                           the potential impact of regulations on                                      does not impose any additional                           defined by section 804 of the Small
                                           small entities while they are developing                                    compliance costs on U.S. employers.                      Business Regulatory Enforcement Act of
                                           the rules. The term ‘‘small entities’’                                      U.S. employers must continue filing                      1996. This rule will not result in an
                                           comprises small businesses, not-for-                                        extension of stay requests with DHS to                   annual effect on the economy of $100
                                           profit organizations that are                                               extend the period of authorized stay of                  million or more; a major increase in
                                           independently owned and operated and                                        E–3, H–1B1, and CW–1 nonimmigrant                        costs or prices; or significant adverse
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                                           are not dominant in their fields, and                                       employees, as is currently required.                     effects on competition, employment,
                                                                                                                       This final rule, however, will allow for                 investment, productivity, innovation, or
                                             29 Receipts are those filed within the FY indicated
                                                                                                                       a continued period of authorized                         on the ability of United States-based
                                           and include petitions from new arrivals and those
                                           that are seeking to adjust status.                                          employment for the nonimmigrant                          companies to compete with foreign-
                                             30 Approved and denied petitions may have been                            worker who is the beneficiary of this                    based companies in domestic and
                                           receipted in a previous FY.                                                 petition, provided that the petition is                  export markets.


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                                                              Federal Register / Vol. 81, No. 10 / Friday, January 15, 2016 / Rules and Regulations                                              2083

                                           E. Executive Order 13132                                Enhancing Opportunities for H–1B1,                       Authority: 8 U.S.C. 1101, 1103, 1151,
                                                                                                   CW–1, and E–3 Nonimmigrants and EB–                    1153, 1154, 1182, 1184, 1186a, 1255, 1641; 8
                                             This rule will not have substantial                                                                          CFR part 2.
                                           direct effects on the States, on the                    1 Immigrants, published in the Federal
                                           relationship between the Federal                        Register at 79 FR 26870 on May 12,                     ■  2. Section 204.5 is amended by
                                           Government and the States, or on the                    2014. DHS’s responses to these                         redesignating paragraphs (i)(3)(ii) and
                                           distribution of power and                               comments appear under Part III.F of this               (iii) as paragraphs (i)(3)(iii) and (iv),
                                           responsibilities among the various                      final rule.                                            respectively, and adding a new
                                           levels of government. Therefore, in                        DHS did not receive comments                        paragraph (i)(3)(ii) to read as follows:
                                           accordance with section 6 of Executive                  related to the Immigrant Petition for                  § 204.5 Petitions for employment-based
                                           Order 13132, it is determined that this                 Alien Workers, Form I–140, revisions.                  immigrants.
                                           rule does not have sufficient federalism                As a result, DHS will not submit any                   *       *     *     *     *
                                           implications to warrant the preparation                 further changes to the information                        (i) * * *
                                           of a federalism summary impact                          collection.                                               (3) * * *
                                           statement.                                                 USCIS has submitted the supporting                     (ii) If the standards in paragraph
                                                                                                   statement to OMB as part of its request                (i)(3)(i) of this section do not readily
                                           F. Executive Order 12988
                                                                                                   for approval of this revised information               apply, the petitioner may submit
                                             This rule meets the applicable                        collection instrument. There is no                     comparable evidence to establish the
                                           standards set forth in sections 3(a) and                change in the estimated annual burden                  beneficiary’s eligibility.
                                           3(b)(2) of Executive Order 12988.                       hours initially reported in the proposed               *       *     *     *     *
                                           G. Paperwork Reduction Act                              rule. Based on a technical and
                                                                                                   procedural update required in the ICRs                 PART 214–NONIMMIGRANT CLASSES
                                              Under the Paperwork Reduction Act                    for all USCIS forms, USCIS has newly
                                           (PRA) of 1995, Public Law 104–13,                       accounted for estimates for existing out-              ■  3. The authority citation for part 214
                                           agencies are required to submit to the                  of-pocket costs that respondents may                   is revised to read as follows:
                                           Office of Management and Budget                         incur to obtain tax, financial, or                        Authority: 8 U.S.C. 1101, 1102, 1103, 1182,
                                           (OMB), for review and approval, any                     business records, and/or other                         1184, 1186a, 1187, 1221, 1281, 1282, 1301–
                                           reporting requirements inherent in a                    evidentiary documentation depending                    1305 and 1372; sec. 643, Public Law 104–
                                           rule. See 44 U.S.C. 3506.                               on the specific employment-based                       208, 110 Stat. 3009–708; Public Law 106–
                                              The information collection                                                                                  386, 114 Stat. 1477–1480; section 141 of the
                                                                                                   immigrant visa classifications requested               Compacts of Free Association with the
                                           requirement contained in this rule,                     on the Immigrant Petition for Alien                    Federated States of Micronesia and the
                                           Immigrant Petition for Alien Worker,                    Worker, Form I–140. This change in the                 Republic of the Marshall Islands, and with
                                           Form I–140, has been previously                         ICR is a technical and procedural                      the Government of Palau, 48 U.S.C. 1901
                                           approved for use by OMB under the                       update and is not a result of any change               note, and 1931 note, respectively; 8 CFR part
                                           PRA. The OMB control number for the                     related to this final rule.                            2.
                                           information collection is 1615–0015.                                                                           ■ 4. Section 214.1 is amended in
                                              This final rule requires a revision to               Regulatory Amendments                                  paragraph (c)(1) by:
                                           the Immigrant Petition for Alien                        List of Subjects                                       ■ a. Revising the paragraph heading;
                                           Worker, Form I–140, instructions to                                                                            and
                                           expand the current list of evidentiary                  8 CFR Part 204                                         ■ b. Removing the first and second
                                           standards to include comparable                                                                                sentences, and adding one sentence in
                                                                                                     Administrative practice and
                                           evidence so that U.S. employers                                                                                their place.
                                                                                                   procedure, Immigration, Reporting and                    The revision and addition read as
                                           petitioning for an EB–1 outstanding                     recordkeeping requirements.
                                           professor or researcher may be aware                                                                           follows:
                                           that they may submit additional or                      8 CFR Part 214
                                                                                                                                                          § 214.1 Requirements for admission,
                                           alternative documentation                                                                                      extension, and maintenance of status.
                                                                                                     Administrative practice and
                                           demonstrating the beneficiary’s
                                                                                                   procedure, Aliens, Cultural exchange                   *     *     *    *     *
                                           achievements if the evidence otherwise                                                                           (c) * * *
                                                                                                   programs, Employment, Foreign
                                           described in 8 CFR 204.5(i)(3)(i) does                                                                           (1) Extension of stay for certain
                                                                                                   officials, Health professions, Reporting
                                           not readily apply. Specifically, DHS is                                                                        employment-based nonimmigrant
                                                                                                   and recordkeeping, Students.
                                           adding a new paragraph ‘‘b’’ under the                                                                         workers. A petitioner seeking the
                                           ‘‘Initial Evidence’’ section of the form                8 CFR Part 248                                         services of an E–1, E–2, E–3, H–1B, H–
                                           instructions, to specify that employers                                                                        1B1, H–2A, H–2B, H–3, L–1, O–1, O–2,
                                           filing for an outstanding professor or                    Aliens, Reporting and recordkeeping
                                                                                                   requirements.                                          P–1, P–2, P–3, Q–1, R–1, or TN
                                           researcher may submit comparable                                                                               nonimmigrant beyond the period
                                           evidence to establish the foreign                       8 CFR Part 274a                                        previously granted, must apply for an
                                           national’s eligibility if the listed                                                                           extension of stay on the form designated
                                           standards under 8 CFR 204.5(i)(3)(i) do                   Administrative practice and
                                                                                                                                                          by USCIS, with the fee prescribed in 8
                                           not readily apply. DHS is also providing                procedure, Aliens, Employment,
                                                                                                                                                          CFR 103.7(b)(1), with the initial
                                           minor clarifying language updates to the                Penalties, Reporting and recordkeeping
                                                                                                                                                          evidence specified in § 214.2, and in
                                           form instructions to maintain parity                    requirements.
                                                                                                                                                          accordance with the form instructions.
                                           among USCIS forms. DHS has submitted                      Accordingly, chapter I of title 8 of the             * * *
                                           the revised information collection                      Code of Federal Regulations is amended
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                                                                                                                                                          *     *     *    *     *
                                           request (ICR) to OMB for review, and                    as follows:
                                           OMB has conducted a preliminary                                                                                PART 248—CHANGE OF
                                           review under 5 CFR 1320.11.                             PART 204—IMMIGRANT PETITIONS                           NONIMMIGRANT CLASSIFICATION
                                              DHS has considered the public
                                           comments received in response to EB–                    ■ 1. The authority citation for part 204               ■ 5. The authority citation for part 248
                                           1 provision in the proposed rule,                       continues to read as follows:                          continues to read as follows:


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                                           2084               Federal Register / Vol. 81, No. 10 / Friday, January 15, 2016 / Rules and Regulations

                                             Authority: 8 U.S.C. 1101, 1103, 1184, 1258;           DEPARTMENT OF TRANSPORTATION                           Subtitle I, Section 106 describes the
                                           8 CFR part 2.                                                                                                  authority of the FAA Administrator.
                                           ■ 6. Section 248.3 is amended by                        Federal Aviation Administration                        Subtitle VII, Aviation Programs,
                                           revising the section heading and                                                                               describes in more detail the scope of the
                                           paragraph (a) to read as follows:                       14 CFR Part 71                                         agency’s authority. This rulemaking is
                                                                                                   Docket No. FAA–2015–6753; Airspace                     promulgated under the authority
                                           § 248.3   Petition and application.                     Docket No. 15–ANM–29                                   described in Subtitle VII, Part A,
                                           *     *    *     *     *                                                                                       Subpart I, Section 40103. Under that
                                             (a) Requests by petitioners. A                        Amendment of Class D Airspace;                         section, the FAA is charged with
                                           petitioner must submit a request for a                  Denver, CO                                             prescribing regulations to assign the use
                                           change of status to E–1, E–2, E–3, H–1C,                                                                       of airspace necessary to ensure the
                                                                                                   AGENCY:  Federal Aviation                              safety of aircraft and the efficient use of
                                           H–1B, H–1B1, H–2A, H–2B, H–3, L–1,
                                                                                                   Administration (FAA), DOT.                             airspace. This regulation is within the
                                           O–1, O–2, P–1, P–2, P–3, Q–1, R–1, or
                                           TN nonimmigrant.                                        ACTION: Final rule.                                    scope of that authority as it amends
                                           *     *    *     *     *                                                                                       Class D airspace at Denver, CO.
                                                                                                   SUMMARY:   This action amends the city
                                                                                                   designation of the Class D airspace at                 Availability and Summary of
                                           PART 274a—CONTROL OF                                    Broomfield, CO, changing the                           Documents for Incorporation by
                                           EMPLOYMENT OF ALIENS                                    designation to Denver, CO, and the                     Reference
                                                                                                   airport name to Rocky Mountain                            This document amends FAA Order
                                           ■ 7. The authority citation for part 274a
                                                                                                   Metropolitan Airport. The name and                     7400.9Z, Airspace Designations and
                                           continues to read as follows:
                                                                                                   associated city location of the airport are            Reporting Points, dated August 6, 2015,
                                             Authority: 8 U.S.C. 1101, 1103, 1324a; 48             updated to coincide with the FAA’s
                                           U.S.C. 1806; 8 CFR part 2.                                                                                     and effective September 15, 2015. FAA
                                                                                                   aeronautical database. This does not                   Order 7400.9Z is publicly available as
                                           ■  8. Section 274a.12 is amended by:                    affect the charted boundaries or                       listed in the ADDRESSES section of this
                                           ■  a. Revising the first sentence of                    operating requirements of the airspace.                document. FAA Order 7400.9Z lists
                                           paragraph (b)(9);                                       DATES: Effective 0901 UTC, March 31,                   Class A, B, C, D, and E airspace areas,
                                           ■ b. Revising the first sentence of                     2016. The Director of the Federal                      air traffic service routes, and reporting
                                           paragraph (b)(20);                                      Register approves this incorporation by                points.
                                           ■ c. Removing the word ‘‘or’’ at the end                reference action under Title 1, Code of
                                                                                                   Federal Regulations, part 51, subject to               The Rule
                                           of paragraph (b)(23);
                                           ■ d. Removing the period at the end of                  the annual revision of FAA Order                          This amendment to Title 14, Code of
                                           paragraph (b)(24) and adding in its place               7400.9 and publication of conforming                   Federal Regulations (14 CFR) part 71
                                           ‘‘; or’’; and                                           amendments.                                            modifies the legal description of the
                                           ■ e. Adding paragraph (b)(25).                                                                                 Class D airspace at Denver, CO, by
                                                                                                   ADDRESSES:   FAA Order 7400.9Z,
                                               The revisions and addition read as                                                                         updating the name and associated city
                                                                                                   Airspace Designations and Reporting
                                           follows:                                                                                                       designation of the airport to coincide
                                                                                                   Points, and subsequent amendments can
                                                                                                                                                          with the FAA’s aeronautical database.
                                                                                                   be viewed online at http://www.faa.gov/
                                           § 274a.12 Classes of aliens authorized to                                                                      Jefferson County Airport is renamed
                                           accept employment.                                      air_traffic/publications/. For further
                                                                                                                                                          Rocky Mountain Metropolitan Airport
                                                                                                   information, you can contact the
                                           *     *      *      *      *                                                                                   and the city designation is corrected
                                                                                                   Airspace Policy Group, Federal Aviation
                                             (b) * * *                                                                                                    from Broomfield, CO, to Denver, CO.
                                                                                                   Administration, 800 Independence
                                             (9) A temporary worker or trainee                                                                            This does not affect the boundaries or
                                                                                                   Avenue SW., Washington, DC 29591;
                                           (H–1, H–2A, H–2B, or H–3), pursuant to                                                                         operating requirements of the airspace.
                                                                                                   telephone: 202–267–8783. The Order is
                                           § 214.2(h) of this chapter, or a                                                                                  Class D airspace designations are
                                                                                                   also available for inspection at the
                                           nonimmigrant specialty occupation                                                                              published in paragraph 5000 of FAA
                                                                                                   National Archives and Records
                                           worker pursuant to section                                                                                     Order 7400.9Z dated August 6, 2015,
                                                                                                   Administration (NARA). For
                                           101(a)(15)(H)(i)(b1) of the Act. * * *                                                                         and effective September 15, 2015, which
                                                                                                   information on the availability of FAA
                                           *     *      *      *      *                                                                                   is incorporated by reference in 14 CFR
                                                                                                   Order 7400.9Z at NARA, call 202–741–
                                                                                                                                                          part 71.1. The Class D airspace
                                             (20) A nonimmigrant alien within the                  6030, or go to http://www.archives.gov/
                                                                                                                                                          designations listed in this document
                                           class of aliens described in paragraphs                 federal_register/code_of_federal-
                                                                                                                                                          will be published subsequently in the
                                           (b)(2), (b)(5), (b)(8), (b)(9), (b)(10),                regulations/ibr_locations.html.
                                                                                                                                                          Order.
                                           (b)(11), (b)(12), (b)(13), (b)(14), (b)(16),               FAA Order 7400.9, Airspace                             This is an administrative change
                                           (b)(19), (b)(23) and (b)(25) of this section            Designations and Reporting Points, is                  amending the airport name and city
                                           whose status has expired but on whose                   published yearly and effective on                      location to be in concert with the FAAs
                                           behalf an application for an extension of               September 15.                                          aeronautical database, and does not
                                           stay was timely filed pursuant to § 214.2               FOR FURTHER INFORMATION CONTACT:                       affect the boundaries, or operating
                                           or § 214.6 of this chapter. * * *                       Steve Haga, Federal Aviation                           requirements of the airspace, therefore,
                                           *     *      *      *      *                            Administration, Operations Support                     notice and public procedure under 5
                                             (25) A nonimmigrant treaty alien in a                 Group, Western Service Center, 1601                    U.S.C. 553(b) are unnecessary.
                                           specialty occupation (E–3) pursuant to                  Lind Avenue SW., Renton, WA 98057;
                                           section 101(a)(15)(E)(iii) of the Act.                  telephone (425) 203–4563.                              Regulatory Notices and Analyses
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                                           *     *      *      *      *                            SUPPLEMENTARY INFORMATION:                                The FAA has determined that this
                                                                                                                                                          regulation only involves an established
                                           Jeh Charles Johnson,                                    Authority for This Rulemaking                          body of technical regulations for which
                                           Secretary of Homeland Security.                           The FAA’s authority to issue rules                   frequent and routine amendments are
                                           [FR Doc. 2016–00478 Filed 1–13–16; 11:15 am]            regarding aviation safety is found in                  necessary to keep them operationally
                                           BILLING CODE 9111–97–P                                  Title 49 of the United States Code.                    current, is non-controversial and


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Document Created: 2018-02-02 12:31:48
Document Modified: 2018-02-02 12:31:48
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionFinal rule.
DatesThis final rule is effective February 16, 2016.
ContactPaola 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.
FR Citation81 FR 2068 
RIN Number1615-AC00
CFR Citation8 CFR 204
8 CFR 214
8 CFR 248
8 CFR 274
CFR AssociatedAdministrative Practice and Procedure; Immigration; Reporting and Recordkeeping Requirements; Aliens; Cultural Exchange Programs; Employment; Foreign Officials; Health Professions; Reporting and Recordkeeping; Students and Penalties

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