[Federal Register Volume 79, Number 91 (Monday, May 12, 2014)]
[Proposed Rules]
[Pages 26870-26886]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-10733]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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 

  Federal Register / Vol. 79, No. 91 / Monday, May 12, 2014 / Proposed 
Rules  

[[Page 26870]]



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: Proposed rule.

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SUMMARY: The Department of Homeland Security (DHS) proposes to update 
the regulations to include nonimmigrant high-skilled specialty 
occupation professionals from Chile and Singapore (H-1B1) and from 
Australia (E-3) in the list of classes of aliens authorized for 
employment incident to status with a specific employer, 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 also is proposing to provide authorization for continued 
employment with the same employer if the employer has timely-filed for 
an extension of the nonimmigrant's stay. DHS also proposes this same 
continued work authorization for Commonwealth of the Northern Mariana 
Islands (CNMI)-Only Transitional Worker (CW-1) nonimmigrants if a 
Petition for a CNMI-Only Nonimmigrant Transitional Worker, Form I-
129CW, is timely filed to apply for an extension of stay.
    In addition, DHS is proposing to update 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 would harmonize the regulations for E-3, 
H-1B1, and CW-1 nonimmigrant classifications with the existing 
regulations for other, similarly situated nonimmigrant classifications.
    Finally, DHS is proposing to expand the current list of evidentiary 
criteria for employment-based first preference (EB-1) outstanding 
professors and researchers to allow the submission of evidence 
comparable to the other forms of evidence already listed in the 
regulations. This proposal would harmonize the regulations for EB-1 
outstanding professors and researchers with other employment-based 
immigrant categories that already allow for submission of comparable 
evidence.
    DHS is proposing these changes to the regulations to benefit these 
highly skilled workers and CW-1 transitional workers by removing 
unnecessary hurdles that place such workers at a disadvantage when 
compared to similarly situated workers in other visa classifications.

DATES: Written comments must be received on or before July 11, 2014

ADDRESSES: You may submit comments, identified by DHS Docket No. USCIS-
2012-0005 by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Email: You may submit comments directly to DHS by email at 
[email protected]. Include DHS Docket No. USCIS-2012-0005 in 
the subject line of the message.
     Mail: Chief, Regulatory Coordination Division, Office of 
Policy and Strategy, U.S. Citizenship and Immigration Services, 
Department of Homeland Security, 20 Massachusetts Avenue NW., 
Washington, DC 20529-2140. To ensure proper handling, please reference 
DHS Docket No. USCIS-2012-0005 on your correspondence. This mailing 
address may be used for paper, disk, or CD-ROM submissions.
     Hand Delivery/Courier: Chief, Regulatory Coordination 
Division, Office of Policy and Strategy, U.S. Citizenship and 
Immigration Services, Department of Homeland Security, 20 Massachusetts 
Avenue NW., Washington, DC 20529-2140. Contact telephone number is 
(202) 272-8377.

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) 272-1470.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Public Participation
II. Executive Summary
    A. Purpose of the Regulatory Action
    B. Summary of the Major Provisions of the Regulatory Action
    C. Cost and Benefits
III. Background
    A. E-3 Nonimmigrant Classification
    B. H-1B1 Nonimmigrant Classification
    C. CW-1 Nonimmigrant Classification
    D. EB-1 Outstanding Professor and Researcher Immigrant 
Classification
    E. Need for Regulatory Improvements
    1. E-3, H-1B1, and EB-1 Classifications
    2. CW-1 Nonimmigrant Classification
IV. Proposed Rule
    A. Employment Authorization for E-3 and H-1B1 Nonimmigrants
    1. Employment Authorization Incident to Status With a Specific 
Employer
    2. Automatic Employment Authorization While Extension of Stay 
Request Is Pending
    B. Employment Authorization for CW-1 Nonimmigrants While 
Extension of Stay Request Is Pending
    C. Application Requirement for E-3 and H-1B1 Nonimmigrants 
Requesting Changes of Status or Extensions of Stay
    D. Comparable Evidence for EB-1 Outstanding Professors and 
Researchers
V. 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. Public Participation

    All interested parties are invited to participate in this 
rulemaking by submitting written data, views, or arguments on all 
aspects of this proposed rule. DHS and U.S. Citizenship and Immigration 
Services (USCIS) also invite comments that relate to the economic, 
environmental, or federalism effects that might result from this 
proposed rule. Comments that will provide the most assistance to USCIS 
in implementing these changes will reference a specific portion of the 
proposed rule, explain the reason for any recommended change, and 
include

[[Page 26871]]

data, information, or authority that supports a recommended change.
    Instructions: All submissions must include the agency name and DHS 
Docket No. USCIS-2012-0005 for this rulemaking. Regardless of the 
method used for submitting comments or material, all submissions will 
be posted, without change, to the Federal eRulemaking Portal at http://www.regulations.gov, and will include any personal information you 
provide. Therefore, submitting this information makes it public. You 
may wish to consider limiting the amount of personal information that 
you provide in any voluntary public comment submission you make to DHS. 
DHS may withhold information provided in comments from public viewing 
that it determines may impact the privacy of an individual or is 
offensive. For additional information, please read the Privacy Act 
notice that is available via the link in the footer of http://www.regulations.gov.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov.

II. Executive Summary

 A. Purpose of the Regulatory Action

    DHS proposes to amend its regulations in several ways to improve 
the programs serving the E-3, H-1B1, and CW-1 nonimmigrant 
classifications and the EB-1 immigrant classification for outstanding 
professors and researchers. The proposed changes would harmonize the 
regulations governing these classifications with regulations governing 
similar visa classifications by removing unnecessary hurdles that place 
E-3, H-1B1, CW-1 and certain EB-1 workers at a disadvantage.

B. Summary of the Major Provisions of the Regulatory Action

    The rulemaking includes the following changes:
     Designates E-3 and H-1B1 classifications as authorized to 
work for the specific employer listed in their petition without 
requiring separate approval for work authorization from USCIS (8 CFR 
274a.12): This designation would update DHS regulations to match 
current practice, under which E-3 and H-1B1 nonimmigrant visa holders 
are authorized to work for the duration of their authorized stay in the 
United States without applying separately for employment authorization. 
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, Sec.  501, 119 Stat. 231; United States-Singapore Free 
Trade Agreement Implementation Act, Public Law 108-78, Sec.  402, 117 
Stat. 948 (2003); United States-Chile Free Trade Agreement 
Implementation Act, Public Law 108-77, Sec. Sec.  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 aliens authorized to accept employment 
in the United States as authorized by statute. This rule proposes to 
specifically include these two classifications in the regulation at 
proposed 8 CFR 274a.12(b)(25) and 8 CFR 274a.12(b)(9). This reflects 
statutory authority and codifies current practice into the regulation.
     Automatically extends employment authorization to E-3 and 
H-1B1 nonimmigrants with pending extension of stay requests (8 CFR 
274a.12): The regulations at 8 CFR 274a.12(b)(20) authorize aliens 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 application 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 petition is still pending. Congress created the 
E-3 and H-1B1 nonimmigrant classifications after that regulation was 
promulgated. As such, E-3 and H-1B1 nonimmigrant workers are not 
included in that 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. This rule proposes to amend 
DHS regulations at 8 CFR 274a.12(b)(20) to accord principal E-3 and H-
1B1 nonimmigrants the same treatment as other, similarly situated 
nonimmigrants, such as H-1B, E-1, and E-2 nonimmigrants.
     Updates 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)): Current regulations describing the filing 
procedures list nonimmigrant classifications that are subject to these 
procedures, but do not include H-1B1 and principal E-3 nonimmigrants. 
Although the form instructions for H-1B1 and principal E-3 extension of 
stay and change of status requests (Instructions for Form I-129, 
Petition for a Nonimmigrant Worker) were updated to include H-1B1 and 
principal E-3 nonimmigrants when these categories were first 
established, the regulations were not. This rule proposes to amend the 
regulations to add H-1B1 and principal E-3 nonimmigrants to the list. 
This amendment is consistent with statutory authority and codifies 
current practice into the regulation. See INA sections 214(g)(8)(C)-(D) 
and (g)(11), 248, 8 U.S.C. 1184(g)(8)(C)-(D) and (g)(11), 1258.
     Automatically extends employment authorization for CW-1 
nonimmigrant workers with pending extension of stay requests (8 CFR 
274a.12): The current regulations provide continued work authorization 
for a CW-1 nonimmigrant worker seeking to change to a new employer, 
including a change resulting from early termination, and for an 
employee under the previous CNMI immigration system. 8 CFR 214.2(w)(7) 
and 8 CFR 274a.12(b)(23). Currently, a CW-1 nonimmigrant worker cannot 
continue to work with the same employer beyond the existing 
authorization while waiting for DHS to adjudicate an extension of stay 
request. DHS is proposing to amend 8 CFR 274a.12(b)(20) to add the CW-1 
nonimmigrant classification to the list of employment-authorized 
nonimmigrant classifications allowing for an automatic extension of 
employment authorization of up to 240 days while the employer's timely 
filed extension of stay request remains pending. This change would 
harmonize the treatment of CW-1 nonimmigrants waiting for a decision 
from USCIS on their pending request for an extension of stay with those 
CW-1 nonimmigrants awaiting a decision on a petition to change 
employers.
     Allows a petitioner who wants to employ an outstanding 
professor or researcher to submit evidence comparable to the evidence 
otherwise described in 8 CFR 204.5(i)(3)(i) that demonstrates that the 
beneficiary is recognized as an outstanding professor or researcher. 
The current EB-1 regulations do not allow petitioners for outstanding 
professors and researchers to submit evidence that the beneficiary is 
recognized internationally as outstanding in a specific academic area 
such as, in certain circumstances, important patents or prestigious 
peer-reviewed funding grants. This rule proposes to modify the 
regulatory limitation on initial evidence for outstanding professors 
and researchers to allow a petitioner to submit evidence that is 
comparable to the list of currently accepted evidence and that 
demonstrates that the beneficiary is

[[Page 26872]]

recognized as outstanding. The new regulatory criterion for initial 
evidence would be similar to those found under the aliens of 
extraordinary ability and the aliens of exceptional ability 
classifications. This would broaden the range of evidence that 
professors and researchers may submit and therefore provide petitioners 
with an opportunity to present 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.

C. Cost and Benefits

    The proposed rule, if finalized, would not impose any additional 
costs on employers, workers or any governmental entity.
    The portion of the proposed rule addressing E-3, H-1B1, and CW-1 
nonimmigrant classifications would extend the period of authorized 
employment while requests for an extension of stay for these 
employment-based nonimmigrant classifications are being reviewed. The 
regulations at 8 CFR 274a.12(b)(20) generally provide aliens in 
specific nonimmigrant classifications with authorization to continue 
employment with the same employer for a 240-day period beyond the 
period specified on the Arrival-Departure Record, Form I-94, as long as 
a timely application for an extension of stay is filed on an alien's 
behalf. This provision applies only to the classifications specified in 
the regulation--which does not currently include the E-3, H-1B1, and 
CW-1 nonimmigrant classifications. By harmonizing the regulations for 
E-3, H-1B1, and CW-1 nonimmigrants with the other listed nonimmigrant 
classifications, this proposed rule would provide equity for these 
nonimmigrants relative to other nonimmigrant classifications.
    The proposed rule also would help employers of E-3, H-1B1, and CW-1 
nonimmigrants avoid potential interruptions of employment for E-3, H-
1B1, and CW-1 employees during the period that requests for an 
extension of these employment-based nonimmigrant visa classifications 
are being reviewed. DHS recognizes that these disruptions could result 
in lost wages for an employee and lost productivity for an employer. In 
fact, stakeholders have indicated to USCIS that providing automatic 
extensions of employment authorization would help alleviate potential 
disruptions to the petitioning employer's business arising out of their 
inability to keep their nonimmigrant workers on the payroll while the 
extension request is still pending. DHS does not have data on the 
number of employers or E-3, H-1B1, and CW-1 nonimmigrants experiencing 
disruption in employment by not receiving an approval of the extension 
before the expiration date specified on the Arrival-Departure Record or 
the duration (length of time) of any disruption, but specifically 
welcomes comment on this issue.
    The portion of the proposed rule addressing the evidentiary 
requirements for the EB-1 outstanding professor and researcher 
employment-based immigrant classification would allow for the 
submission of comparable evidence (e.g., achievements not currently 
listed in the regulation as available evidence, such as important 
patents or prestigious, peer-reviewed funding grants) in addition to 
that listed in 8 CFR 204.5(i)(3)(i)(A)--(F) to establish that the EB-1 
professor or researcher is recognized internationally as outstanding in 
his or her academic field. Similar to the benefits of harmonizing E-3, 
H-1B1, and CW-1 provisions, the harmonization of the evidentiary 
requirements for EB-1 outstanding professors and researchers with other 
comparable employment-based immigrant classifications would provide 
equity for EB-1 outstanding professors and researchers relative to 
those other employment-based visa categories. The proposed rule may 
also facilitate petitioners' recruitment of the EB-1 outstanding 
professors and researchers by expanding the range of evidence that may 
be provided to support their petitions.

                 Table 1--Summary of Costs and Benefits
------------------------------------------------------------------------
     Costs             Proposed change        Benefits and avoided costs
------------------------------------------------------------------------
                    E-3, H-1B1 and CW-1 Nonimmigrants
------------------------------------------------------------------------
None...........  Automatic extension of stay  Avoided cost of lost
                  of 240 days for an H-1B1,    productivity for U.S.
                  E-3 or CW-1 nonimmigrant     employers of E-3, H-
                  while a petition to extend   1B1and CW-1 nonimmigrants
                  stay is pending.             and avoided lost wages by
                                               the nonimmigrant workers.
                                               Not quantified.
                                              Would provide equity for 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 E-3 and H-1B1   Ensures the regulations
                  nonimmigrants are work       are consistent with
                  authorized incident to       statutory authority and
                  status, and specify          codifies current
                  current filing procedures    practice.
                  for requesting change of
                  status or extension of
                  status.
------------------------------------------------------------------------
               EB-1 Outstanding Professors and Researchers
------------------------------------------------------------------------
                 Allow the use of comparable  May facilitate recruitment
                  evidence to that listed in   of EB-1 outstanding
                  8 CFR 204.5(i)(3)(i)(A)-     professors and
                  (F) to establish that the    researchers for U.S.
                  EB-1 professor or            employers. Not
                  researcher is recognized     quantified.
                  internationally as          Would provide equity for
                  outstanding in his or her    EB-1 immigrants relative
                  academic field.              to other employment-based
                                               immigrants listed in 8
                                               CFR 204.5. Qualitative
                                               benefit.
------------------------------------------------------------------------

III. Background

    The Immigration Act of 1990 (IMMACT90), among other things, 
reorganized immigrant classifications and 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 increased immigration of 
skilled individuals to meet our

[[Page 26873]]

economic needs.\1\ Those IMMACT90 provisions were enacted to address 
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). The need for high-skilled workers was based on an 
increasing skills gap in current and projected U.S. labor pools. Id.
---------------------------------------------------------------------------

    \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 skilled nonimmigrant and 
immigrant workers. As such, our legal immigration system can be 
improved by reducing barriers for these workers.\2\ 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\ Attracting and retaining highly-skilled workers is critical to 
sustaining our nation's global competitiveness. Governments seeking to 
make the most of their highly skilled immigration face the challenge of 
identifying, attracting, and retaining those with the best prospects 
for success.\4\ Not only does the U.S. economy lose opportunities for 
expansion, but the loss is compounded when highly-skilled immigrants 
leave the United States and fuel innovation and economic growth in 
countries that compete with the American economy.\5\ Consistent with 
this vision of attracting and retaining foreign workers, DHS has 
identified four employment-based (EB) classifications for which simple 
harmonizing changes to the regulations would further the goal of 
removing unnecessary obstacles for highly-skilled workers or 
transitional workers to continue working in the United States or seek 
admission as an immigrant. These classifications are the E-3, H-1B1, 
and CW-1 nonimmigrant classifications and the EB-1 outstanding 
professor and researcher immigrant classification.
---------------------------------------------------------------------------

    \2\ See White House, Building a 21st Century Immigration System 
May 2011, at 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.
    \5\ See Madeline Zavodny, Immigration and American Jobs, Am. 
Enter. Inst. & the Partnership for a New Am. Econ., Dec. 2011, at 5, 
available at http://www.aei.org/files/2011/12/14/-immigration-and-american-jobs_144002688962.pdf.
---------------------------------------------------------------------------

A. E-3 Nonimmigrant Classification

    The E-3 nonimmigrant visa provisions became effective upon signing 
of the REAL ID Act of 2005. See Public Law 109-13, sec. 501, 119 Stat. 
231. The E-3 classification permits certain Australian nationals to 
apply for admission to the United States solely to perform services in 
a specialty occupation. See Immigration and Nationality Act (INA) 
section 101(a)(15)(E)(iii), 8 U.S.C. 1101(a)(15)(E)(iii). USCIS's role 
with respect to the E-3 classification is limited primarily to 
adjudicating requests for either a change from another nonimmigrant 
status to E-3 status, see 8 CFR part 248, or for an extension of stay 
in E-3 classification, See 8 CFR 214.1(c). Both types of requests also 
are governed by the pertinent instructions accompanying the Petition 
for a Nonimmigrant Worker, Form I-129. See Instructions to Petition for 
a Nonimmigrant Worker, Form I-129; 8 CFR 103.2(a).
    The E-3 nonimmigrant visa classification is similar in many 
respects to the H-1B nonimmigrant classification. See INA section 
101(a)(15)(H)(i)(b), 8 U.S.C. 1101(a)(15)(H)(i)(b). As with the H-1B 
classification, the E-3 classification requires the position in which 
the alien will work to be a specialty occupation. The INA defines a 
specialty occupation as one that requires the theoretical and practical 
application of a body of highly specialized knowledge, and a bachelor's 
or higher degree in the specific specialty (or its equivalent). See INA 
section 214(i)(1), 8 U.S.C. 1184(i)(1). E-3 nonimmigrant workers also 
must meet any other occupational requirements specified by the 
jurisdiction in which the alien will be employed, such as licensure or 
other official permission required to immediately and fully perform the 
duties of the occupation in question. See INA section 214(i)(2), 8 
U.S.C. 1184(i)(2); see also 9 Foreign Affairs Manual (FAM) 41.51 
N.16.7.
    Similar to procedures governing the H-1B classification, a U.S. 
employer seeking to employ E-3 nonimmigrant workers must obtain a Labor 
Condition Application (LCA) issued by the U.S. Department of Labor 
(DOL). See INA section 101(a)(15)(E)(iii), 8 U.S.C. 
1101(a)(15)(E)(iii). After DOL approves an LCA, individuals who are 
outside the United States may apply for an E-3 visa directly at a 
consular office overseas, similar to other E nonimmigrant visa 
applicants. See 22 CFR 41.51(c); 9 FAM 41.51 N16.1. For individuals in 
the United States in another nonimmigrant status, the employer may 
instead file a Petition for a Nonimmigrant Worker, Form I-129, with 
USCIS to change the alien's nonimmigrant status to that of an E-3 
nonimmigrant. See Adjudicator's Field Manual (AFM) Chapter 34.6(b); see 
also Instructions to Petition for a Nonimmigrant Worker, Form I-129, 
page 2. This petition may also be used to request an extension of stay 
for an E-3 nonimmigrant worker in the United States. Id.
    E-3 nonimmigrant workers may be admitted initially for a period not 
to exceed 2 years, the maximum validity period of the accompanying LCA. 
See AFM Chapter 34.6 (a)(3); see also INA 101(a)(15)(E)(iii); 20 CFR 
655.750(a); 22 CFR 41.51(c)(1)(iv). USCIS may grant extensions of stay 
in increments not to exceed the validity period of the accompanying LCA 
(in increments of up to 2 years each). Id. USCIS may extend an E-3 
nonimmigrant worker's status indefinitely. Id.
    The E-3 nonimmigrant receives from USCIS his or her approval notice 
on Form I-797 with an attached Arrival-Departure Record, Form I-94, 
which serves as evidence of lawful immigration status. Currently, E-3 
nonimmigrant workers may work for the petitioning employer only until 
the expiration date noted on the Arrival-Departure Record, Form I-94. 
The E-3 nonimmigrant must stop working if USCIS does not approve the 
petition for an extension of stay before the expiration date noted on 
the individual's Arrival-Departure Record, Form I-94.
    Principal E-3 aliens are subject to an annual numerical limitation 
of 10,500 initial E-3 visas per fiscal year (FY). See INA section 
214(g)(11), 8 U.S.C. 1184(g)(11). To determine numerical limitation 
compliance, USCIS counts initial E-3 visa applications submitted 
abroad, initial petitions for a change of status to E-3, and E-3 
applications for an extension of stay requesting a change of employers 
against the numerical limitation. See INA section 214(g)(11)(A), 8 
U.S.C. 1184(g)(11)(A); AFM Chapter 34.6(a)(3) Note 3. USCIS does not 
count the dependent spouse and children of E-3 principal aliens against 
the numerical limitation. See INA section 214(g)(11)(C), 8 U.S.C. 
1184(g)(11)(C); 22 CFR 41.51(c)(2).

[[Page 26874]]

B. H-1B1 Nonimmigrant Classification

    Similar to the E-3 and H-1B nonimmigrant visa classifications, the 
H-1B1 nonimmigrant visa classification also involves the performance of 
services in a specialty occupation, except that it specifically applies 
to nationals of Chile and Singapore. See INA section 
101(a)(15)(H)(i)(b1), 8 U.S.C. 1101(a)(15)(H)(i)(b1); INA section 
214(g)(8)(A), 8 U.S.C. 1184(g)(8)(A). Congress created the H-1B1 
nonimmigrant classification in sections 402-404 of the United States-
Chile Free Trade Agreement Implementation Act, Public Law 108-77, 117 
Stat. 909 (2003), and in section 402 of the United States-Singapore 
Free Trade Agreement Implementation Act, Public Law 108-78, 117 Stat. 
947 (2003), both effective on January 1, 2004.
    To employ an H-1B1 nonimmigrant, a U.S. petitioner must first 
obtain a certification from the U.S. Department of Labor (DOL) 
generally confirming that the petitioner has filed a Labor Condition 
Application (LCA) in the occupational specialty in which the 
nonimmigrant will be employed and has made the requisite attestations. 
See INA sections 101(a)(15)(H)(i)(b1), 212(t), 8 U.S.C. 
1101(a)(15)(H)(i)(b1), 1182(t). The validity period of an LCA issued 
for an H-1B1 nonimmigrant must not exceed three years; an LCA for an 
extension must not exceed two years. See 20 CFR 655.750(a). After 
receiving a certified LCA, individuals who are not in the United States 
may apply for an H-1B1 visa directly at a consular office overseas. See 
9 FAM 41.53 N26.2 and N26.3. For individuals in the United States in 
another nonimmigrant status, the U.S. employer may instead choose to 
file a Petition for a Nonimmigrant Worker, Form I-129, with USCIS to 
change the alien's status to that of an H-1B1 nonimmigrant. See AFM 
Chapter 30.3(a); Instructions to Petition for a Nonimmigrant Worker, 
Form I-129, page 17. This petition may also be used to request an 
extension of stay for an H-1B1 nonimmigrant worker in the United 
States. Id.
    H-1B1 nonimmigrant workers may initially be admitted for 1 year, 
and may only be extended in one-year increments. See INA section 
214(g)(8)(C), 8 U.S.C. 1184(g)(8)(C). Extensions of stay may only be 
granted if there is a certified H-1B1 LCA for the period requested. See 
INA section 212(t), 8 U.S.C. 1182(t). USCIS may indefinitely extend H-
1B1 nonimmigrant status. See INA 214(g)(8)(C). Currently, the H-1B1 
nonimmigrant may work for the petitioning employer until his or her 
authorized period of stay expires, as noted on the latest Arrival-
Departure Record, Form I-94. If USCIS has not approved the petition for 
an extension by this expiration date, the H-1B1 nonimmigrant cannot 
continue working past this date. See AFM Chapter 30.2(d).
    A numerical limitation of 1,400 initial H-1B1 visas per FY applies 
to H-1B1 principal aliens who are nationals of Chile. See INA section 
214(g)(8)(B)(ii)(I), 8 U.S.C. 1184 (g)(8)(B)(ii)(I). A numerical 
limitation of 5,400 initial H-1B1 visas per FY applies to principal 
aliens who are nationals of Singapore. See INA section 
214(g)(8)(B)(ii)(II), 8 U.S.C. 1184 (g)(8)(B)(ii)(II). These numerical 
limitations apply to all initial H-1B1 visa applications submitted 
abroad and to all petitions seeking change of status to H-1B1 
nonimmigrant classification submitted to USCIS. USCIS does not count 
the dependent spouses and children of H-1B1 principal aliens against 
the numerical limitations. See INA section 214(g)(8)(B)(iii), 8 U.S.C. 
1184(g)(8)(B)(iii).

C. CW-1 Nonimmigrant Classification

    The CW classification includes CW-1 nonimmigrants, referring to 
principal workers, and CW-2 nonimmigrants, referring to dependent 
spouses and minor children. See 8 CFR 214.2(w)(2) and (3). The CW 
nonimmigrant classification was created in accordance with title VII of 
the Consolidated Natural Resources Act of 2008 (CNRA). See Pub. L. 110-
229, 122 Stat. 754, 853 (2008). Title VII of the CNRA made effective 
the immigration laws of the United States in the CNMI and replaced the 
immigration laws of the CNMI. Id. The CNRA included provisions for a 
``transition period'' to phase-out the CNMI's nonresident contract 
worker program and phase-in the U.S. Federal immigration system in a 
manner that minimizes the adverse economic and fiscal effects and 
maximizes the CNMI's potential for future economic and business growth. 
See section 701 of the CNRA, 48 U.S.C. 1806 note. The CNRA authorized 
DHS to create a nonimmigrant classification that would ensure adequate 
employment in legitimate businesses in the CNMI, while preventing 
adverse effects on wages and working conditions of workers already 
authorized to be employed in the United States, during the transition 
period, which is set to end on December 31, 2014, unless extended by 
the Secretary of Labor.\6\ See id.; 48 U.S.C. 1806(d)(2).
---------------------------------------------------------------------------

    \6\ The Secretary of Labor is authorized to extend the 
transitional worker program beyond December 31, 2014 for additional 
periods of up to 5 years each. See section 701 of the CNRA, 48 
U.S.C. 1806(d)(5).
---------------------------------------------------------------------------

    Consistent with the CNRA, DHS published a final rule \7\ on 
September 7, 2011, effective October 7, 2011, amending its regulations 
to add a new provision at 8 CFR 214.2(w) that implemented a temporary 
CW classification. See Commonwealth of the Northern Mariana Islands 
Transitional Worker Classification, 76 FR 55502 (Sept. 7, 2011) 
(hereinafter, 2011 CW classification final rule). With limited 
exception, the CW classification provides a method for certain aliens 
to transition from the former CNMI foreign worker permit system to the 
U.S. immigration system. Id. at 55502.
---------------------------------------------------------------------------

    \7\ On October 27, 2009, DHS published an interim rule which 
provided a 30-day comment period. See Commonwealth of the Northern 
Mariana Islands Transitional Worker Classification, 74 FR 55094 
(Oct. 27, 2009). The interim rule was to become effective on 
November 27, 2009. However, as a result of a lawsuit filed by the 
CNMI government, a preliminary injunction was entered enjoining the 
interim final rule. See CNMI v. United States, 670 F. Supp. 2d 65 
(D.D.C. 2009). On December 9, 2009, DHS published a notice in the 
Federal Register reopening and extending the public comment period 
for an additional 30 days. See Commonwealth of the Northern Mariana 
Islands Transitional Worker Classification; Reopening the Public 
Comment Period, 74 FR 64997 (Dec. 9, 2009). The comments received 
during both comment periods were addressed in the final rule.
---------------------------------------------------------------------------

    A CW-1 nonimmigrant worker is an alien worker who is ineligible for 
another nonimmigrant classification under the INA and who performs 
services or labor for an employer in the CNMI during the 5-year 
transition period in an occupational category designated by DHS. See 8 
CFR 214.2 (w)(2)(i) and (vi). CW-1 nonimmigrant workers cannot be 
present in the United States, other than in the CNMI. See 8 CFR 
214.2(w)(2)(iii). In addition, their presence in the CNMI must be 
lawful. See 8 CFR 214.2(w)(2)(iv). Moreover, if they are inadmissible 
to the United States as a nonimmigrant, they must have been granted a 
waiver of each ground of inadmissibility. See 8 CFR 214.2 (w)(2)(v). 
The alien seeking CW-1 nonimmigrant status must also meet any other 
occupational requirements as specified by the CNMI or local 
jurisdiction in which the alien will be employed, such as licensure or 
other official permission required to fully perform the duties of the 
occupation in question. See 8 CFR 214.2(w)(6)(ii)(E), (iii); Petition 
for a CNMI-Only Nonimmigrant Transitional Worker, Form I-129CW 
Classification Supplement, page 10.
    Unlike the nonimmigrant specialty occupation worker 
classifications, this classification does not require a certified LCA 
from DOL prior to filing a petition

[[Page 26875]]

with USCIS. Instead, a U.S. employer seeking to classify an alien as a 
CW-1 nonimmigrant worker must first file a petition with USCIS. See 8 
CFR 214.2(w)(5). Specifically, such employer must file a Petition for a 
CNMI-Only Nonimmigrant Transitional Worker, Form I-129CW, or other form 
prescribed by USCIS, with the accompanying CW Supplement and supporting 
evidence. See 8 CFR 214.2(w)(1)(x), (w)(5), and (w)(6). For individuals 
in the CNMI in another nonimmigrant status, the Form I-129CW may also 
be used to change status to that of a CW-1 nonimmigrant worker. See 8 
CFR 214.2(w)(18); Instructions to Petition for a CNMI-Only Nonimmigrant 
Transitional Worker, Form I-129CW, page 1. Employers may also file a 
Form I-129CW to request an extension of stay for a CW-1 nonimmigrant 
worker in the CNMI or to petition to change employers. See 8 CFR 
214.2(w)(7), (17); Instructions to Petition for a CNMI-Only 
Nonimmigrant Transitional Worker, Form I-129CW, page 1. Upon obtaining 
CW-1 nonimmigrant status, CW-1 nonimmigrant workers are employment 
authorized incident to status, but only in the CNMI and with the 
petitioning employer. 8 CFR 214.2(w)(22)(iv). This means that CW-1 
nonimmigrants are authorized to work for the specific employer listed 
in their petition without requiring separate approval for work 
authorization from USCIS.
    Under certain circumstances, the Form I-129CW may be filed on 
behalf of multiple beneficiaries, but the petitioning employer must 
submit one CW Supplement per beneficiary. See 8 CFR 214.2(w)(9); 
Instructions to Petition for a CNMI-Only Nonimmigrant Transitional 
Worker, Form I-129CW, page 2.
    CW-1 nonimmigrant workers may be admitted for a period of up to 1 
year. See 8 CFR 214.2(w)(13). USCIS may grant extensions of CW-1 status 
of up to 1 year until the end of the transition period, subject to the 
annual numerical limitation per FY. See 8 CFR 214.2(w)(17)(iii). The CW 
visa classification is valid only in the CNMI. See 8 CFR 214.2(w)(22).
    The CW-1 nonimmigrant in the CNMI receives from USCIS a Notice of 
Action, Form I-797, or another form as USCIS may prescribe with an 
attached Arrival-Departure Record, Form I-94, which serves as evidence 
of lawful immigration status. See 8 CFR 214.2 (w)(12). Currently, CW-1 
nonimmigrant workers may work for the petitioning employer only until 
the expiration of the petition validity period, even if an employer has 
filed a timely application for an extension of stay on the CW-1 
nonimmigrant's behalf. See 8 CFR 214.2(w)(13). The CW-1 nonimmigrant 
must stop working if USCIS does not approve the petition for an 
extension of stay before the expiration of the petition's validity 
period.
    CW-1 nonimmigrant workers are subject to an annual numerical 
limitation per FY. See 8 CFR 214.2(w)(1)(viii). The CNRA mandates an 
annual reduction in the number of transitional workers and total 
elimination of the CW classification by the end of the transition 
period.\8\ Consistent with this mandate, DHS established the CW-1 
numerical limitation for FY 2011 at 22,417 and for FY 2012 at 22,416. 
See 8 CFR 214.2(w)(1)(viii)(A) and (B). The numerical limitation for FY 
2013 was set at 15,000. See CNMI-Only Transitional Worker Numerical 
Limitation for Fiscal Year 2013, 77 FR 71287 (Nov. 30, 2012). The 
numerical limitation was set at 14,000 for FY 2014. See Commonwealth of 
the Northern Mariana Islands (CNMI)-Only Transitional Worker Numerical 
Limitation for Fiscal Year 2014, 78 FR 58867 (Sept. 25, 2013). USCIS 
counts initial petitions for a change of status to CW-1, CW-1 petitions 
for an extension of stay, and requests for a change of status from 
another nonimmigrant status to CW-1 status against the numerical 
limitation. USCIS does not count CW-2 nonimmigrant dependent spouses 
and children of CW-1 principal aliens against the numerical limitation. 
Id. at 58868.
---------------------------------------------------------------------------

    \8\ The CNRA mandated that DHS provide the CNMI with flexibility 
to maintain existing businesses and develop new economic 
opportunities, yet required an annual reduction in the number of 
permits and total elimination of the CW classification by the end of 
the transition period. See section 701(b) of the CNRA, 48 U.S.C. 
1806 note; 48 U.S.C. 1806(d)(2).
---------------------------------------------------------------------------

D. EB-1 Outstanding Professor and Researcher Immigrant Classification

    The outstanding professor and researcher immigrant classification 
constitutes one of the three EB-1 immigrant worker categories.\9\ See 
INA section 203(b)(1)(B), 8 U.S.C. 1153(b)(1)(B). The professor or 
researcher must:
---------------------------------------------------------------------------

    \9\ The employment-based first-preference classification (EB-1) 
also consists of: (1) Persons of extraordinary ability (must be able 
to demonstrate extraordinary ability in the sciences, arts, 
education, business, or athletics through sustained national or 
international acclaim); and (2) executives and managers of 
multinational employers (must have been employed in the three years 
preceding filing of the petition for at least one year by a firm, 
corporation, other legal entity, or affiliate or subsidiary thereof 
and must be seeking to enter the United States to continue service 
to that entity or a subsidiary or affiliate thereof in a capacity 
that is managerial or executive). This rule only proposes changes to 
EB-1 outstanding professors and researchers.
---------------------------------------------------------------------------

     Be recognized internationally as outstanding in a specific 
academic area;
     Have at least 3 years of experience in teaching or 
research in his or her academic area; and
     Seek to enter the United States for a tenured or tenure-
track position within a university or institution of higher education 
to teach in the academic area, for a comparable position with a 
university or institution of higher education to conduct research in 
the area, or for a comparable position to conduct research in the area 
with a department, division, or institute of a private employer, if the 
department, division, or institute employs at least three full-time 
persons in research activities and has achieved documented 
accomplishments in an academic field. See INA section 203(b)(1)(B), 8 
U.S.C. 1153(b)(1)(B).
    A prospective U.S. employer submitting a petition on behalf of an 
outstanding professor or researcher is not required to obtain an 
approved labor certification application from DOL, but the U.S. 
employer must submit an Immigrant Petition for Alien Worker, Form I-
140, along with an offer of employment and other supporting evidence. 
See 8 CFR 204.5(i)(1) and 204.5(i)(3)(iii).

E. Need for Regulatory Improvements

    DHS recognizes that attracting and retaining these highly-skilled 
workers is important given the contributions of these individuals to 
the U.S. economy, including advances in entrepreneurial and research 
and development endeavors, which are highly correlated with overall 
economic growth and job creation. By some estimates, immigration was 
responsible for one-third of the explosive growth in patenting in past 
decades, and these innovations have the potential to contribute to 
increasing U.S. gross domestic product (GDP).\10\ According to one 
study, in over 25 percent of technology companies founded in the United 
States from 1995 to 2005, at least one key founder was foreign-
born.\11\

[[Page 26876]]

Likewise, in 2012, the Kauffman Foundation reported that immigrants 
were more than twice as likely to start a business in the United States 
as the native-born and a report by the Partnership for a New American 
Economy found that more than 40 percent of 2010 Fortune 500 companies 
were founded by immigrants or their children.\12\
---------------------------------------------------------------------------

    \10\ See generally Jennifer Hunt & Marjolaine Gauthier-Loiselle, 
How Much Does Immigration Boost Innovation?, Nat'l Bureau of Econ. 
Research, Sept. 2008, available at http://www.nber.org/papers/w14312.
    \11\ See Vivek Wadhwa et al., Intellectual Property, the 
Immigration Backlog, and a Reverse Brain-Drain--America's New 
Immigrant Entrepreneurs, Part III, Ctr. for Globalization, 
Governance & Competitiveness, Aug. 2007, at 2, available at http://www.cggc.duke.edu/documents/IntellectualProperty_theImmigrationBacklog_andaReverseBrainDrain_003.pdf; Vivek Wadhwa 
et al., America's New Immigrant Entrepreneurs, Duke School of 
Engineering and the Univ. of Cal. Berkeley School of Info., Jan. 4, 
2007, at 11, available at http://people.ischool.berkeley.edu/~anno/
Papers/Americas--new--immigrant--entrepreneurs--I.pdf; Julia 
Preston, Work Force Fueled by Highly Skilled Immigrants, N.Y. Times, 
Apr. 15, 2010, available at http://www.nytimes.com/2010/04/16/us/16skilled.html?_r=1.
    \12\ See Robert Fairlie, Kauffman Index of Entrepreneurial 
Activity: 1996-2012, The Ewing Marion Kauffman Found., Apr. 2013, at 
10, available at http://www.kauffman.org/what-we-do/research/2013/04/kauffman-index-of-entrepreneurial-activity-19962012; Partnership 
for a New Am. Econ., 2011, The ``New American'' Fortune 500, June 
2011, at 2 available at http://www.nyc.gov/html/om/pdf/2011/partnership_for_a_new_american_economy_fortune_500.pdf.
---------------------------------------------------------------------------

    DHS intends to harmonize regulations governing filing procedures, 
continued work authorization, and evidentiary requirements, with other 
similarly situated worker classifications. The proposals remove current 
regulatory obstacles that may cause unnecessary disruptions to the 
petitioning employers' ability to maintain productivity. In doing so, 
the proposals also remove obstacles for these workers to remain in or 
enter the United States and provide equity among the similar 
classifications.
1. E-3, H-1B1, and EB-1 Classifications
    When Congress established the E-3 and H-1B1 nonimmigrant 
classifications, it authorized certain foreign workers to apply to the 
Department of State (DOS) for a visa without first obtaining a petition 
approval from USCIS. See REAL ID Act of 2005, Public Law 109-13, Sec.  
501; United States-Singapore Free Trade Agreement Implementation Act, 
Public Law 108-78, sec. 402; United States-Chile Free Trade Agreement 
Implementation Act, Public Law 108-77, secs. 402-404; see also 22 CFR 
41.51(c); 9 FAM 41.51 N16.1; 9 FAM 41.53 N27.2 and N27.3 
(respectively). In this regard, the procedures for obtaining status 
under the E-3 and H-1B1 classifications require fewer administrative 
steps than those required for the similar H-1B nonimmigrant 
classification.\13\ U.S. employers of E-3 and H-1B1 nonimmigrants save 
associated petition filing fees and processing times as a result.
---------------------------------------------------------------------------

    \13\ Under 8 CFR 214.2(h)(2), a United States employer or agent 
seeking to classify an alien as an H-1B temporary worker must file a 
petition with USCIS.
---------------------------------------------------------------------------

    For the EB-1 outstanding professor and researcher immigrant 
classification, the prospective U.S. employer must file an Immigrant 
Petition for Alien Worker, Form I-140, and supporting evidence. Unlike 
most other employment-based immigrant classifications, however, the 
employer is not required to obtain and submit an approved labor 
certification application issued by DOL prior to filing the petition 
with USCIS.\14\ See 8 CFR 204.5(i)(1) and 204.5(i)(3)(iii).
---------------------------------------------------------------------------

    \14\ See INA section 212(a)(5)(A). A permanent labor 
certification issued by the DOL is typically the first step in 
allowing an employer to hire a foreign worker to work permanently in 
the United States. Via the labor certification process, DOL 
certifies that there are not enough U.S. workers who are able, 
willing, qualified, and available in the geographic area where the 
immigrant is to be employed and that the employment of such alien 
will not adversely affect the wages and working conditions of 
similarly employed workers in the United States. Generally, 
petitioners for employees in the second preference categories 
(members of the professions holding advanced degrees and aliens of 
exceptional ability) (EB-2) and in the third preference categories 
(skilled workers, professionals and other workers) (EB-3) must 
obtain a permanent labor certification from DOL prior to filing an 
Immigrant Petition for Alien Worker, Form I-140, on behalf of a 
prospective foreign national employee. See INA section 203(b)(2)-
(3), 8 U.S.C. 1153(b)(2)-(3); 8 CFR 204.5(k), (l).
---------------------------------------------------------------------------

    While the procedures for the E-3, H-1B1, and EB-1 classifications 
may contain fewer administrative steps than procedures for other 
nonimmigrant or immigrant classifications, statistics indicate that 
these classifications are still underutilized. Even though there are 
10,500 E-3 visas and 6,800 H-1B1 visas available per FY, DOS and USCIS 
statistics indicate that in FY 2013, DOS issued 3,946 new E-3 
nonimmigrant visas and USCIS approved 622 extensions of stay requests 
and 102 requests for change of status to the E-3 nonimmigrant 
classification. Also in FY 2013, DOS issued 571 new H-1B1 visas and 
USCIS approved 411 extensions of stay requests and 315 requests for 
change of status to the H-1B1 nonimmigrant classification.\15\ In FY 
2012, the most recent year that data has been released, a total of 
3,394 persons obtained lawful permanent resident status in the EB-1 
outstanding professor and researcher category, 16 of whom were new 
arrivals admitted to the United States as EB-1 immigrants whereas the 
remaining 3,378 individuals adjusted their status in the United 
States.\16\
---------------------------------------------------------------------------

    \15\ For visas issued: See DOS, Fiscal Year 2013 Annual Report, 
Table XVI(B), Nonimmigrant Visas Issued by Classification (Including 
Crewlist Visas and Border Crossing Cards) Fiscal Years 2009-2013, 
available at http://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2013AnnualReport/FY13AnnualReport-TableXVIB.pdf. 
Source for USCIS processing volumes: USCIS Office of Performance and 
Quality, April 2014.
    \16\ See DHS, Office of Immigration Statistics, 2012 Yearbook of 
Immigration Statistics Table 7, available at https://www.dhs.gov/yearbook-immigration-statistics-2012-legal-permanent-residents.pdf.
---------------------------------------------------------------------------

    In reviewing the existing regulations, DHS has identified changes 
to the regulations that can be made to significantly improve the 
process for these individuals seeking to remain in the United States in 
the E-3, H-1B1, or EB-1 classifications. The changes address 
stakeholders' concerns regarding the lack of the continued work 
authorization for E-3 and H-1B1 nonimmigrants with pending extension of 
stay requests and regarding the inability of EB-1 outstanding 
professors and researchers to submit comparable evidence for 
establishing eligibility. These changes would remove unnecessary 
obstacles for these workers to remain in or enter the United States 
under these classifications, while harmonizing the regulations of these 
similarly related classifications.
2. CW-1 Nonimmigrant Classification
    For the CW nonimmigrant classification, facilitating the retention 
of workers is not the objective, since Congress specifically directed a 
reduction in the number of aliens extended CW-1 nonimmigrant status 
during the transition period.\17\ Instead, the express congressional 
intent of the CNRA provisions is to minimize the potential adverse 
economic and fiscal effects of the federalization of immigration in the 
CNMI. See 48 U.S.C. 1806(d)(2). While DHS believes that it issued 
implementing regulations consistent with congressional intent, see 76 
FR 55502, DHS has identified improvements that can be made to the 
regulations to further minimize the effects of federalization and, 
therefore, better facilitate eligibility for continuing

[[Page 26877]]

employment of CW-1 nonimmigrant workers during the transition period.
---------------------------------------------------------------------------

    \17\ The CNRA requires an annual reduction in the number of 
transitional workers (and complete elimination of the CW 
nonimmigrant classification by the end of the transition period) but 
does not mandate a specific reduction. 48 U.S.C. 1806(d)(2). In 
addition, 8 CFR 214.2(w)(1)(viii)(C) provides that the numerical 
limitation for any fiscal year will be less than the number 
established for the previous fiscal year, and it will be reasonably 
calculated to reduce the number of CW-1 nonimmigrant workers to zero 
by the end of the transition period. DHS established the CW-1 
numerical limitation for FY 2011 at 22,417 and for FY 2012 at 
22,416. See 8 CFR 214.2(w)(1)(viii)(A) and (B). DHS set the 
numerical limit of CW-1 temporary visas at 15,000 for FY 2013 and 
14,000 for FY 2014. See Commonwealth of the Northern Mariana Islands 
(CNMI)-Only Transitional Worker Numerical Limitation for Fiscal Year 
2014, 78 FR 58867. For FY 13, employers filed petitions for a total 
of 8,133 beneficiaries (Source: USCIS Office of Performance and 
Quality).
---------------------------------------------------------------------------

IV. Proposed Rule

    In this rule, DHS proposes to amend DHS regulations in several ways 
in order to improve the programs serving the E-3, H-1B1, and CW-1 
nonimmigrant classifications and the EB-1 immigrant classification by 
harmonizing regulations for these classifications with regulations for 
other similar classifications. First, DHS proposes to amend 8 CFR 
274a.12 to:
     Designate the principal E-3 and H-1B1 nonimmigrant 
classifications as employment authorized incident to status with a 
specific employer; and
     Automatically extend employment authorization to principal 
E-3, H-1B1, and CW-1 nonimmigrants with timely filed, pending extension 
of stay requests.
    DHS recognizes that the current limitation on continued employment 
authorization, while the petition extension is pending, may cause 
disruption to a petitioning employer's business. Through this rule, DHS 
intends to remove that potential disruption, as well as to provide 
equity with similar classifications.
    Second, consistent with these changes and form instructions on the 
Petition for a Nonimmigrant Worker, Form I-129, DHS proposes to amend 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.
    Third, DHS is proposing to amend 8 CFR 204.5(i)(3) by adding a 
provision allowing a petitioner seeking to employ an outstanding 
professor or researcher to submit comparable evidence to establish the 
beneficiary is recognized internationally as an outstanding professor 
or researcher.

A. Employment Authorization for E-3 and H-1B1 Nonimmigrants

1. Employment Authorization Incident to Status With a Specific Employer
    DHS regulations at 8 CFR 274a.12 list the classes of aliens 
authorized to accept employment in the United States. Some classes of 
aliens are extended employment authorization automatically upon 
attaining their status. See 8 CFR 274a.12(a) and (b). On the other 
hand, other classes of aliens are employment authorized only after 
receiving a specific grant of employment authorization from USCIS 
following an application process. See 8 CFR 274a.12(c). Such 
nonimmigrants must apply for an Employment Authorization Document (EAD) 
which indicates that the individual is allowed to work in the United 
States as a result of the specific nonimmigrant status. For principal 
E-3 or H-1B1 nonimmigrants, the INA describes their employment with a 
specific, petitioning employer as the very basis for their presence in 
the United States; they do not have to apply for an EAD. 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 8 CFR 274a.12(b)(9). However, following the 
establishment of the E-3 and H-1B1 nonimmigrant categories by statute, 
the provisions in 8 CFR 274a.12(b) have not been updated to include 
principal E-3 and H-1B1 nonimmigrants.
    Through this rule, DHS is proposing a new provision at 8 CFR 
274a.12(b)(25) to add principal E-3 nonimmigrants to the list of aliens 
employment authorized incident to status with a specific employer. DHS 
is also proposing to amend 8 CFR 274a.12(b)(9), which currently applies 
to various H nonimmigrant classifications, to include the H-1B1 
nonimmigrant classification as employment authorized incident to status 
with a specific employer. While these nonimmigrants have been treated 
as work authorized incident to status for a specific employer, they are 
not classified as such in the regulations. As a result of this rule, 
the current practice will be codified into existing regulation.
2. Automatic Employment Authorization While Extension of Stay Request 
Is Pending
    Attracting and retaining high-skilled workers is critical to 
sustaining our nation's global competitiveness. In fact, according to 
the Congressional Budget Office, doing so will lead to greater economic 
growth because it will add more high-demand workers to the labor force, 
increase capital investment and overall productivity, and lead to 
greater numbers of entrepreneurs starting companies in the United 
States.\18\ These individuals add to real GDP growth by boosting 
investment and raising productivity.\19\ Once these skilled workers are 
here, it is important to provide employers with continued access to 
their current foreign workers if and when they decide to extend the 
stay of such workers. The regulations at 8 CFR 274a.12(b)(20) provide 
aliens in specific nonimmigrant classifications with authorization to 
continue employment with the same employer for a 240-day period beyond 
the period specified on the Arrival-Departure Record, Form I-94, as 
long as a timely application for an extension of stay is filed on an 
alien's behalf. This provision applies only to the classifications 
specified in the regulation--not to all nonimmigrants.
---------------------------------------------------------------------------

    \18\ See Executive Office of the President, White House Report: 
The Economic Benefits of Fixing Our Broken Immigration System (July 
10, 2013), at 4, available at http://www.whitehouse.gov/sites/default/files/docs/report.pdf; Congressional Budget Office, The 
Economic Impact of S. 744, the Border Security, Economic 
Opportunity, and Immigration Modernization Act (June 18, 2013), at 
5, available at: http://www.cbo.gov/publication/44346.
    \19\ See Economic Report of the President (Mar. 10, 2014), at 
88, available at: http://www.whitehouse.gov/sites/default/files/docs/full_2014_economic_report_of_the_president.pdf.
---------------------------------------------------------------------------

    Consequently, certain nonimmigrants automatically receive continued 
work authorization if an application for an extension of stay with the 
same employer is timely filed. The alien is authorized by regulation to 
continue employment with the same employer for a period not to exceed 
240 days, beginning on the date of the expiration of the authorized 
period of stay. Such authorization is subject to any conditions and 
limitations noted on the initial authorization. If the petition is 
adjudicated prior to the expiration of the 240-day period and denied, 
the continued employment authorization is automatically terminated as 
of the date of the denial notice. See 8 CFR 274a.12(b)(20).
    The E-3 and H-1B1 nonimmigrant classifications did not exist when 
the provision authorizing an extension of employment authorization 
while an extension of stay request is pending was promulgated.\20\ As a 
result, although

[[Page 26878]]

principal E-3 and H-1B1 nonimmigrants may remain in the United States 
without accruing unlawful presence until USCIS renders a decision on a 
timely filed petition for an extension of stay, they may not continue 
to work for the petitioning U.S. employer while the petition is pending 
once their authorized stay has expired. See INA 212(a)(9)(B)(iv), 8 
U.S.C. 1182 (a)(9)(B)(iv); see also Memo from Donald Neufeld, Acting 
Assoc. Dir., Consolidation of Guidance Concerning Unlawful Presence for 
Purposes of Sections 212(a)(9)(B)(i) and 212 (a)(9)(C)(i)(I) of the Act 
35 (May 6, 2009). To avoid gaps in employment authorization, U.S. 
employers of principal E-3 and H-1B1 nonimmigrants must file a petition 
to extend the nonimmigrant status of their E-3 and H-1B1 workers well 
before their period of authorized stay in the United States expires 
(the expiration date is indicated on the Arrival-Departure Record, Form 
I-94).\21\ As of March 2014, processing times at the USCIS Vermont 
Service Center for Petitions for Nonimmigrant Workers, Form I-129, 
filed for E-3 and H-1B1 extensions average 2 months.\22\ Alternatively, 
rather than apply for an extension of stay with USCIS, principal E-3 
and H-1B1 nonimmigrants may choose to leave the United States, apply 
for a new visa at a U.S. consulate, and seek readmission to the United 
States in E-3 or H-1B1 status once the visa is issued. This process can 
involve substantial expense and may result in unanticipated delays 
related to issuance of a new visa or readmission to the United States. 
In either case, both employers and employees could face a gap in 
employment. The potential gap in the work authorization period can be 
disruptive for aliens and may be a determining factor in whether or not 
they decide to come to the United States on these visas.
---------------------------------------------------------------------------

    \20\ The provision establishing employment authorization to 
certain nonimmigrants for a limited period while an extension 
request is pending became effective on June 1, 1987. See Control of 
Employment of Aliens, 52 FR 16216, 16220, 16227 (May 1, 1987). At 
that time, certain H, J, and L nonimmigrants aliens became eligible 
for an extension of employment authorization with the same employer 
incident to status for up to 120 days, and were authorized to 
request employment authorization beyond 120 days, if necessary, by 
applying for an Employment Authorization Document (EAD). The 
provision was amended in 1991 to change the period of employment 
authorization incident to status from the original 120 days to the 
current 240 days, and remove the ability to apply for an EAD to 
permit employment for additional periods. See Powers and Duties of 
Service Officers; Availability of Service Records, Control of 
Aliens, 56 FR 41767, 41781 (Aug. 23, 1991). In this later version, 
the authorization was expanded to encompass employment-based 
nonimmigrants more generally.
    \21\ See AFM Chapter 30.2 (general requirements regarding 
extension of stay for nonimmigrants); see also 8 CFR 214.1. As 
previously noted, an H-1B1 nonimmigrant is only admitted in one-year 
increments. See INA section 214(g)(8)(C), 8 U.S.C. 1184(g)(8)(C).
    \22\ See USCIS Processing Time Information, available at https://egov.uscis.gov/cris/processTimesDisplayInit.do.
---------------------------------------------------------------------------

    Stakeholders have raised concerns to USCIS that, since E-3 and H-
1B1 nonimmigrants are not included in 8 CFR 274a.12(b)(20) for 
automatic extensions of employment authorization while extension of 
stay requests are pending, U.S. employers experience difficulties 
because they cannot keep their nonimmigrant workers on the payroll and 
productive during this time. DHS agrees that it is important to ensure 
U.S. employers have uninterrupted access to these high-skilled 
nonimmigrants, just as U.S. employers have uninterrupted access to H-1B 
nonimmigrants in specialty occupations while an extension of stay 
request is pending. Accordingly, DHS concludes that 8 CFR 
274a.12(b)(20) should be amended to include principal E-3 and H-1B1 
nonimmigrant aliens, thereby giving these nonimmigrant aliens and their 
employers the same treatment as H-1B nonimmigrant aliens.
    By automatically extending employment authorization to principal E-
3 and H-1B1 nonimmigrants requesting extensions of stay, employers 
would gain the same predictability in the employment authorization of 
their E-3 and H-1B1 employees as employers of similar employment-based 
nonimmigrants under 8 CFR 274a.12(b)(20). Thus, U.S. employers would 
not have to face a potential gap in employment of these nonimmigrant 
employees. Additionally, employees would avoid lost wages and the costs 
of having to seek a visa abroad.

B. Employment Authorization for CW-1 Nonimmigrants While Extension of 
Stay Request Is Pending

    The CW regulations do not currently treat requests for extensions 
of stay and requests for change of employment consistently. The CW 
regulations at 8 CFR 214.2(w) do not presently provide for continued 
employment authorization for CW-1 nonimmigrant workers based on timely 
filed extension of stay requests filed by the same initial employer. 
However, the regulations do provide continued work authorization for 
certain CW-1 nonimmigrant workers seeking to change to a new employer, 
including a change resulting from early termination, and for an 
employee under the previous CNMI immigration system. See 8 CFR 
214.2(w)(7) and 8 CFR 274a.12(b)(23). Without continued work 
authorization for extension of stay requests, this inconsistency 
results in the disruption of employment for those CW-1 workers that are 
awaiting USCIS adjudication of their extension of stay requests with 
the same employer.
    For individuals authorized to work under the previous CNMI 
immigration system, the regulation at 8 CFR 274a.12(b)(23) provides 
continuing work authorization in certain situations while the initial 
application for CW status is pending. Under this provision, an alien 
authorized to be employed in the CNMI can continue in that employment 
until a decision is made on a CW petition filed by the employer if the 
petition was filed on or before November 27, 2011. DHS made this 
accommodation in the 2011 CW classification final rule implementing the 
CW nonimmigrant classification to address the unique circumstances in 
the CNMI. See Commonwealth of Northern Mariana Islands Transitional 
Worker Classification, 76 FR 55502. These circumstances included: The 
lack of familiarity in the CNMI with Federal immigration processes; the 
expiration of CNMI-issued employment authorization on November 27, 
2011; the adverse economic situation in the CNMI; and the legislative 
direction in the CNRA to seek to minimize adverse economic effects of 
the federalization of immigration authority. See id. at 55513.
    Similarly, a CW-1 nonimmigrant worker changing employers may work 
for the prospective employer once a non-frivolous Petition for a CNMI-
Only Nonimmigrant Transitional Worker, Form I-129CW, is filed, and work 
authorization continues until the petition is adjudicated. See 8 CFR 
214.2(w)(7). The CW-1 nonimmigrant worker is covered by this provision 
as long as: (1) The petition is filed before the date of expiration of 
the CW-1 nonimmigrant worker's authorized period of stay; and (2) 
subsequent to his or her lawful admission, the CW-1 nonimmigrant worker 
has not been employed without authorization in the United States. See 8 
CFR 214.2(w)(7)(iii). Employment authorization ceases if the new 
petition is denied. See 8 CFR 214.2(w)(7)(iv).
    The CNMI change-of-employer provisions also provide continuing work 
authorization when a CW-1 status violation results solely from 
termination of CW-1 nonimmigrant employment. See 8 CFR 214.2(w)(7)(v). 
Under these provisions, CW-1 nonimmigrant status expires 30 days after 
the date of termination, rather than on that date itself, as long as a 
new employer files a non-frivolous petition within that 30-day period, 
and the CW-1 nonimmigrant worker does not otherwise violate the terms 
and conditions of his or her status. Id. Thus, the CW-1 nonimmigrant 
worker is able to begin work pending petition adjudication of the non-
frivolous petition. See 8 CFR 214.2(w)(7)(iii). This provides a limited 
period of time after the termination of employment for CW-1 
nonimmigrant workers to obtain new qualifying employment. See 
Commonwealth of Northern Mariana Islands Transitional Worker 
Classification, 76 FR 55502, 55515.
    The change of employer provisions at 8 CFR 214.2(w)(7) were 
included in the 2011 CW classification final rule to provide a 
mechanism for employees to

[[Page 26879]]

freely transfer between employers as mandated by the CNRA. See 48 
U.S.C. 1806(d)(4). However, DHS did not include provisions to address 
employees who decide to extend their stay with the same employer. Such 
employees may experience gaps in employment authorization after their 
CW-1 nonimmigrant status expires while awaiting a decision on their 
request for an extension of stay with the same employer. While the 2011 
CW classification final rule was silent regarding employment 
authorization in this situation, long-standing regulations at 8 CFR 
274a.12(b)(20) covering other nonimmigrant classifications provide for 
continued employment authorization for up to 240 days.
    Therefore, in the CW nonimmigrant worker context, current 
regulations have placed new employers petitioning for CW-1 nonimmigrant 
workers in a better position than existing employers of CW-1 
nonimmigrant workers. The new petitioner has the advantage of work 
authorization for the alien beneficiary based on filing the petition, 
rather than upon it being granted. This effectively allows the 
beneficiary to work for a new employer pending adjudication of the 
petition as long as it is filed before the date of expiration of the 
CW-1 nonimmigrant worker's authorized period of stay, but the 
beneficiary cannot continue to work for his or her current employer on 
the same terms. This disparity may serve as an incentive for CW-1 
nonimmigrant workers to change employers. To remedy this effect and to 
ensure that current and new employers are on equal footing, DHS is 
proposing to amend the regulations to harmonize the CW nonimmigrant 
provisions regarding continued employment authorization during the 
pendency of requests for either change of employers or extension of 
stay. Specifically, DHS is proposing to amend 8 CFR 274a.12(b)(20) to 
add the CW-1 nonimmigrant classification to the list of employment-
authorized nonimmigrant classifications that receive an automatic 
extension of employment authorization of 240 days while the employer's 
timely filed extension of stay request remains pending.\23\ While 
processing times vary, USCIS expects to adjudicate within the 240-day 
time period.
---------------------------------------------------------------------------

    \23\ Although the provisions are not exactly the same 
(continuing employment with the same employer is authorized for up 
to 240 days, while there is no fixed end to the work authorization 
pending adjudication of the petition in a change of employer 
situation), in practice USCIS does not expect this to result in any 
substantive difference as both types of petitions are normally 
adjudicated within 240 days.
---------------------------------------------------------------------------

C. Application Requirement for E-3 and H-1B1 Nonimmigrants Requesting 
Changes of Status or Extensions of Stay

    As mentioned earlier in the Background section of the Supplementary 
Information, when the E-3 and H-1B1 nonimmigrant classifications were 
established by statute effective in 2005 and 2004 respectively, DHS 
provided a means for E-3 and H-1B1 nonimmigrants to request changes of 
status and extensions of stay through amendments to the instructions 
for the Petition for a Nonimmigrant Worker, Form I-129, to include the 
E-3 and H-1B1 nonimmigrant classifications in the change of status and 
extension of stay section. See Part 2 of Instructions to Petition for a 
Nonimmigrant Worker, Form I-129, pages 2, 17, and 19.
    In addition to the instructions to this form, application filing 
procedures are also contained in the regulations at 8 CFR 214.1(c) for 
extensions of stay and 8 CFR 248.3(a) for change of status. To update 
the regulations in conformity with the application filing procedures 
specified in the form instructions, DHS is amending 8 CFR 214.1(c) 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 make an extension of stay or change of status request. This 
will update the regulation to reflect information already provided in 
the Instructions for Form I-129, Petition for a Nonimmigrant Worker 
(page 2). The amendment also removes references in 8 CFR 214.1(c) to 
the specific form that is currently used for such requests, the 
Petition for a Nonimmigrant Worker, Form I-129. Specific reference to 
this form and form title need not be included in the regulations. By 
removing it, the regulations will maintain necessary flexibility to 
accommodate future changes to the form title.
    In addition to these changes, DHS also is proposing to delete the 
term ``employer'' in the description in 8 CFR 214.1(c) and 248.3(a)(1) 
of who may file requests for a change of status or extension of stay. 
DHS has determined that use of the term ``employer'' in the change of 
status and extension of stay provisions may be misleading if not read 
in a manner consistent with the regulations governing the petition 
requirements specific to each nonimmigrant classification governed by 8 
CFR 214.2. In the classification-specific regulatory provisions in 8 
CFR 214.2, individuals and entities that may file petitions on behalf 
of alien workers are fully described and vary from classification to 
classification. For example, those who may file H-1B, H-2A or H-2B 
petitions include certain agents, and petitions on behalf of athletes 
or entertainment groups under INA 101(a)(15)(P), 8 U.S.C. 
1101(a)(15)(P), can be filed by a U.S. sponsoring organization. See 8 
CFR 214.2(h)(2)(i)(F), (p)(2)(i). To eliminate inconsistency between 
the change of status and extension of stay provisions and the 
classification-specific provisions in 8 CFR 214.2, DHS is proposing to 
amend the change of status and extension of stay provisions by 
replacing the narrow term ``employer'' with the more general term 
``petitioner.'' Proposed 8 CFR 214.1(c) and 248.3(a)(1). DHS expects 
this change would eliminate any confusion that the current 
inconsistency in the regulatory text may have caused.

D. Comparable Evidence for EB-1 Outstanding Professors and Researchers

    Professors and researchers play a vital role in the educational and 
economic future of the United States by enhancing our competitiveness 
within the global marketplace. The United States is in constant 
competition with other developed nations to attract and retain the 
greatest number of high-skilled researchers and professors to enhance 
economic and educational stability.\24\ Providing for a seamless 
immigration system is important to attract and retain high-caliber 
foreign national professors and researchers.
---------------------------------------------------------------------------

    \24\ See Jonathan Rothwell et al. Patenting Prosperity: 
Invention and Economic Performance in the United States and its 
Metropolitan Areas. Metropolitan Policy Program at Brookings, Feb. 
2013, at 33, available at http://www.brookings.edu/~/media/research/
files/reports/2013/02/patenting%20prosperity%20rothwell/
patenting%20prosperity%20rothwell.pdf.
---------------------------------------------------------------------------

    In implementing the employment-based immigrant classifications in 
1991, the former Immigration and Naturalization Service (INS) 
recognized the importance of establishing a system which provided 
access to these high-skilled and specially-trained personnel for 
American businesses. See Employment-Based Immigrants, 56 FR 60897 (Nov. 
29, 1991). In the regulations implementing IMMACT90, INS provided for 
petitioning procedures and eligibility and admission requirements for 
these employment-based immigrants. Id. INS recognized the importance of 
providing petitioners with some flexibility in the documentation that 
could be submitted to establish a beneficiary's eligibility. Id. The 
final rule retained or added the comparable evidence provision for 
certain employment-based immigrant

[[Page 26880]]

categories, including EB-1 aliens of extraordinary ability under 
section 203(b)(1)(A) of the INA, 8 U.S.C. 1153(b)(1)(A), and the 
employment-based second preference (EB-2) aliens of exceptional ability 
under section 203(b)(2) of the INA, 8 U.S.C. 1153(b)(2). INS retained 
or added the comparable evidence provision in response to commenters' 
concerns that the proposed evidentiary criteria could exclude some 
aliens from qualifying for either the EB-1 aliens of extraordinary 
ability or the EB-2 aliens of exceptional ability classification. See 
56 FR at 60900. The EB-1 classification consists of three types of 
skilled workers (persons of extraordinary ability, outstanding 
professors and researchers, and executives and managers of 
multinational employers) but INS only extended the comparable evidence 
provision to one of those categories--persons of extraordinary ability. 
However, INS did not extend the comparable evidence provision to EB-1 
outstanding professors and researchers because the public did not 
suggest a similar change to this EB-1 provision. See 8 CFR 204.5(i)(3); 
56 FR at 60899 and 60906. In the rule, INS limited the initial evidence 
for demonstrating that the alien is recognized internationally as an 
outstanding professor or researcher in their academic field, to six 
criteria. See 8 CFR 204.5(i)(3)(i).
    Stakeholders in the educational and research arena have recently 
expressed concern that the current regulations at 8 CFR 204.5(i)(3) do 
not allow petitioners to submit comparable evidence that the 
beneficiary is recognized internationally as an outstanding professor 
or researcher, as allowed for related classifications. These 
stakeholders believe that the current list at 8 CFR 204.5(i)(3) is 
dated and may no longer be reasonably inclusive.\25\ They have opined 
that changing the regulations to permit petitioners to submit 
comparable evidence would provide petitioners with the opportunity to 
fully document the alien's achievements, as they relate to the 
classification, without the constraints of a limited list of acceptable 
initial evidence.
---------------------------------------------------------------------------

    \25\ See Letter from Marlene M. Johnson, Executive Director and 
CEO of NAFSA: Association of International Educators, to Ivan K. 
Fong, General Counsel, DHS (April 13, 2011), available at http://www.nafsa.org/uploadedFiles/DHSregreviewcommentApr122011%20public.pdf.
---------------------------------------------------------------------------

    Following review of the applicable regulatory provisions, DHS 
agrees that amending 8 CFR 204.5(i)(3) to include a comparable evidence 
option is appropriate in order to attract eligible professors and 
researchers to emigrate to the United States. In this rule, DHS 
proposes to modify the regulatory limitation on initial evidence for 
outstanding professors and researchers to allow a petitioner to submit 
``comparable evidence'' in lieu of or in addition to the current list 
at 8 CFR 204.5(i)(3) that demonstrates that the beneficiary is 
internationally recognized as outstanding, if the evidence listed in 
the current regulation does not readily apply. See proposed 8 CFR 
204.5(i)(3)(ii) (re-designating current 8 CFR 204.5(i)(3)(ii) and (iii) 
as 8 CFR 204.5(i)(3)(iii) and (iv), respectively). The new regulatory 
criterion for initial evidence would be similar to those found under 
the aliens of extraordinary ability and the aliens of exceptional 
ability classifications.\26\ See 8 CFR 204.5(h)(4) and (k)(3)(iii). 
This change will allow the petitioner to submit additional evidence to 
establish eligibility for the classification; it will not change the 
standard for meeting the eligibility requirements.
---------------------------------------------------------------------------

    \26\ 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 INA section 203(b)(1)(A), 
(2)(A). Employers filing petitions under such classifications thus 
may submit comparable evidence if they are able to 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 
encompasses only two overarching types of occupations, and the 
current eligibility criteria generally readily apply to both. 
Consequently, limiting submission of comparable evidence for 
outstanding professors and researchers only to instances in which 
the criteria do not readily apply ``to the alien's occupation'' 
would be unavailing and would not adequately serve the goal of this 
regulatory change.
---------------------------------------------------------------------------

V. 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, of reducing costs, of harmonizing rules, and of promoting 
flexibility. DHS considers this to be a ``significant regulatory 
action,'' although not an economically significant regulatory action, 
under section 3(f) of Executive Order 12866. Accordingly, the Office of 
Management and Budget (OMB) has reviewed this regulation.
    This proposed rule, if finalized, would not impose any additional 
costs on employers, individuals or government entities, including the 
Federal government. The proposed rule would make certain changes to the 
regulations, improving the process for obtaining or retaining status 
under the E-3, H-1B1, and CW-1 nonimmigrant classifications. 
Specifically, DHS is proposing to allow E-3, H-1B1, and CW-1 
nonimmigrant workers up to 240 days of continued work authorization 
beyond the expiration date noted on their Form I-94, provided that 
their extension of stay request is timely filed. As previously noted, 
this change would put principal E-3, H-1B1, and CW-1 nonimmigrants on 
par with other, similarly situated nonimmigrants. The proposed 
provisions would not result in any additional costs, burdens, or 
compliance procedures for either the U.S. employer of these 
nonimmigrant workers, nor to the workers themselves.
    Additionally, DHS proposes to allow petitioners on behalf of EB-1 
outstanding professors and researchers to submit comparable evidence, 
in lieu of or in addition to the evidence listed in 8 CFR 
204.5(i)(3)(i), that the professor or researcher is recognized 
internationally as outstanding in his or her academic field. The 
allowance for comparable evidence for EB-1 outstanding professors and 
researchers would harmonize 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. During development 
of DHS's Retrospective Review Plan, DHS received a comment from the 
public requesting specific changes to the DHS regulations that govern 
continued work authorization for E-3 and H-1B1 nonimmigrants when an 
extension of status petition is timely filed, and to expand the types 
of evidence allowable in support of immigrant petitions for outstanding 
researchers or professors. This rule is responsive to that comment, and 
with the retrospective review principles of Executive Order 13563.
    The costs and benefits of the proposed rule are summarized in Table 
2.

[[Page 26881]]



                 Table 2--Summary of Costs and Benefits
------------------------------------------------------------------------
     Costs             Proposed change        Benefits and avoided costs
------------------------------------------------------------------------
                   E-3, H-1B1, and CW-1 Status Holders
------------------------------------------------------------------------
None...........  Automatic continued          Avoided cost of lost
                  employment authorization     productivity for U.S.
                  of up to 240 days for an H-  employers of E-3, H-1B1,
                  1B1, E-3, or CW-1            and CW-1 workers. Not
                  nonimmigrant worker while    quantified.
                  an extension of stay        Would provide equity for E-
                  petition is pending.         3 and H-1B1 status
                                               holders 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.
                                               Qualitative benefit.
                 Clarify that E-3 and H-1B1   Ensures the regulations
                  nonimmigrants are work       are consistent with
                  authorized incident to       statutory authority and
                  status, and specify          codifies current
                  current filing procedures    practice.
                  for requesting change of
                  status or extension of
                  status.
                --------------------------------------------------------
        EB-1 Outstanding Professor and Researcher Classification
------------------------------------------------------------------------
                 Allow the use of comparable  May facilitate recruitment
                  evidence to that listed in   of EB-1 outstanding
                  8 CFR 204.5(i)(3)(i)(A)-     professors and
                  (F) to establish that the    researchers for U.S.
                  EB-1 professor or            employers. Not
                  researcher is recognized     quantified.
                  internationally as          Would provide equity for
                  outstanding in his or her    EB-1 status holders
                  academic field.              relative to other
                                               employment-based
                                               immigrants listed in 8
                                               CFR 204.5. Qualitative
                                               benefit.
------------------------------------------------------------------------

    A summary of the visa types affected by this proposed rule is shown 
in Table 3.

                                     Table 3--Summary of Affected Visa Types
----------------------------------------------------------------------------------------------------------------
                                      Beneficiary                          Maximum duration
            Visa type                restrictions     Immigration status        of stay       Annual limitations
----------------------------------------------------------------------------------------------------------------
E-3.............................  Nationals of        Nonimmigrant        2 years,            10,500.
                                   Australia.          (temporary          indefinite
                                                       workers).           extensions.
H-1B1...........................  Nationals of Chile  Nonimmigrant        1 year, indefinite  1,400 for Chilean
                                   or Singapore.       (temporary          extensions.         nationals; 5,400
                                                       workers).                               for Singaporean
                                                                                               nationals.
CW-1............................  Limited to workers  Nonimmigrant        1 year, extensions  Maximum of 14,000
                                   in the CNMI         (temporary          available through   in FY 2014.
                                   during the          workers).           December 31, 2014
                                   transition to                           unless extended
                                   U.S. Federal                            by DOL.
                                   immigration
                                   regulations.
EB-1 outstanding professor and    Outstanding         Immigrant           None..............  Apportioned from
 researcher.                       professors and      (permanent                              the approximate
                                   researchers (any    workers).                               40,000 available
                                   nationality).                                               annually to first
                                                                                               preference
                                                                                               employment-based
                                                                                               immigrant visas.
----------------------------------------------------------------------------------------------------------------

1. E-3 or H-1B1 Nonimmigrant Workers
    Under current regulations, employers of E-3 or H-1B1 nonimmigrants 
must generally file a petition requesting the extension of the 
individual employee's stay well before the initial authorized period of 
stay expires in order to ensure continued employment authorization 
throughout the period that the extension request is pending. The 
petition requesting an extension may be filed as early as 6 months 
prior to the expiration of their authorized period of stay and, as 
noted previously, the average processing time for these extension 
requests is 2 months as of March 2014. If, however an extension request 
is not granted prior to the expiration of the authorized period of 
stay, the E-3 or H-1B1 nonimmigrant cannot continue to work while his 
or her extension petition remains pending.
    In this rule, DHS proposes to amend its regulations to permit 
principal E-3 and H-1B1 nonimmigrants to continue their employment with 
the same employer for a period not to exceed 240 days beyond the 
expiration of their authorized period of stay specified on their 
Arrival-Departure Record, Form I-94, while their petitions requesting 
extensions are pending. To obtain this 240-day automatic employment 
bridge, employers would be required to timely file a Petition for a 
Nonimmigrant Worker, Form I-129, to request an extension of the 
employee's stay. See proposed 8 CFR 274a.12(b)(20). Under current 
regulations, employers must file Form I-129 in order to request an 
extension of stay on behalf of the employee, so there are no additional 
filing requirements for employers to comply with this proposed rule.
    Through this rule, DHS intends to harmonize the provisions of 
extended employment authorization (generally through the adjudication 
period of an extension) of principal E-3 and H-1B1 nonimmigrant 
classifications with the related provisions of other employment-based 
nonimmigrant classifications in 8 CFR 274a.12(b)(20).
    This provision of the proposed rule would not create additional 
costs for any petitioning employer or for the E-3 or H-1B1 nonimmigrant 
worker. The benefits of the proposed rule would be to provide equity 
for E-3 and H-1B1 nonimmigrants relative to other employment-based 
nonimmigrants

[[Page 26882]]

listed in 8 CFR 274a.12(b)(20). Additionally, this provision may allow 
employers of E-3 or H-1B1 nonimmigrant workers to avoid the cost of 
lost productivity resulting from interruptions of work while an 
extension of stay petition is pending.
    In addition, DHS is proposing to amend the regulations to codify 
current practices. Specifically, DHS would amend 8 CFR 274a.12 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 proposing to amend 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.
    Table 4 shows that USCIS received a total of 5,221 extension of 
stay petitions for H-1B1 and E-3 nonimmigrant workers in the FYs from 
2009 through 2013 (an average of 1,044 petitions per year). Approvals 
of extensions of stay petitions in the same period totaled 3,828 (an 
average of 766 per year). Extension of stay petitions received and 
petition approvals are not meant for direct comparison because 
decisions regarding a petition received in one year may be made in 
another year.

                Table 4--Petition for a Nonimmigrant Worker, Form I-129 Filed for an Extension of Status for E-3 and H-1B1 Nonimmigrants
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                        Petitions received                              Petition approvals
                           FY                            -----------------------------------------------------------------------------------------------
                                                               H-1B1            E-3            Total           H-1B1            E-3            Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
2009....................................................             490             611           1,101             231             618             849
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
                                                         -----------------------------------------------------------------------------------------------
    Total...............................................           2,278           2,943           5,221           1,227           2,601           3,828
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: Data provided by USCIS Office of Performance and Quality (OPQ), April, 2014.

    USCIS does not have an estimate of either the number of cases where 
E-3 and H-1B1 nonimmigrants have lost work authorization because their 
petition for an extension of stay was not adjudicated before the 
expiration of their authorized period of stay or the duration of the 
lost work authorization.\27\ Because of this data limitation, we are 
unable to quantify the total aggregate estimated benefits of this 
provision of the rule. To the extent that this rule would allow U.S. 
employers to avoid interruptions in productivity that could result if 
the extension of stay is not adjudicated prior to the expiration date 
noted on the nonimmigrant worker's Form I-94, the rule would result in 
a benefit for U.S. employers.
---------------------------------------------------------------------------

    \27\ USCIS acknowledges that in part 3 of the Petition for a 
Nonimmigrant Worker (currently Form I-129), information is collected 
about the beneficiary that is currently in the United States. While 
this information is collected and considered for purposes of 
adjudication of benefit, this information is not captured in a 
database.
---------------------------------------------------------------------------

    DHS requests public comment from impacted stakeholders on 
additional information or data that would permit DHS to estimate the 
benefits of this rule as it relates to avoiding productivity losses or 
other benefits to U.S. employers or E-3 and H-1B1 high-skilled workers, 
including whether this rule may facilitate recruitment of high-skilled 
workers.
2. CW-1 Nonimmigrant Workers
    This provision of the proposed rule would 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 
workers who are otherwise ineligible for other nonimmigrant visa 
classifications under the Federal immigration system to work in the 
CNMI during the period in which the immigration regulations of the CNMI 
transition to those of the U.S. Federal immigration system. This 
transition period will end on December 31, 2014, after which CW-1 
nonimmigrant status will cease, unless the transitional worker program 
is extended by DOL.
    CW-1 nonimmigrants may be admitted to the CNMI for a period of 1 
year. 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 a certified LCA from the 
DOL.
    DHS has determined that current regulations contain an 
inconsistency. While current regulations provide continued work 
authorization for CW-1 nonimmigrant workers during the pendency of 
USCIS adjudication of petitions for a change of employers and for 
certain beneficiaries of initial CW 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.
    The proposed revision to the regulations would allow for equitable 
treatment of CW-1 nonimmigrant workers by extending continued 
employment authorization for up to 240 days while a 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 E-3 
nonimmigrants, current employers of CW-1 nonimmigrant workers may also 
avoid productivity losses that could be incurred if a CW-1 nonimmigrant 
is not permitted to continue employment during adjudication of the 
extension request.
    The CW-1 nonimmigrant visa classification is temporary. DHS has 
established numerical limitations on the number of CW-1 nonimmigrant 
visas that may be granted, as shown in 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 not yet determined the reduction in the numerical limitation for 
the remainder of the transition period from October 1, 2013 (beginning 
of FY 2014) to December 31, 2014 (the end of the transition period, 
unless the transition

[[Page 26883]]

period is extended by the Secretary of Labor).

              Table 5--Numerical Limitations of CW-1 Visas
------------------------------------------------------------------------
                    FY                             Numerical limit
------------------------------------------------------------------------
2011......................................  22,417
2012......................................  22,416
2013......................................  15,000
2014......................................  14,000
Period from October 1, 2014 through         To be determined.
 December 31, 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.

    DHS set the numerical limit of CW-1 temporary visas at 15,000 for 
FY 2013 and petitioning employers filed initial petitions for 696 
beneficiaries; extension of stay requests from the same employer for 
6,079 beneficiaries; and extension of stay requests from new employers 
for an additional 1,358 beneficiaries.\28\ The population affected by 
this provision of the proposed rule would be those CW-1 nonimmigrant 
workers whose subsequent extensions of stay requests were filed by the 
same employer. Accordingly, if this proposal were in place in FY 2013, 
all of the 6,079 CW-1 nonimmigrant workers with extension of stay 
requests with the same employer would receive the continued 240-day 
employment bridge, generally putting these workers on par with CW-1 
nonimmigrant workers with extension of stay request for new employers.
---------------------------------------------------------------------------

    \28\ Source: USCIS Office of Performance and Quality.
---------------------------------------------------------------------------

    This proposed provision would not impose any additional costs for 
any petitioning employer or for CW-1 nonimmigrant workers. The benefits 
of the proposed rule would be to provide equity for CW-1 nonimmigrant 
workers whose extension of stay request is filed by the same employer 
relative to other CW-1 nonimmigrant workers. Additionally, this 
provision would 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. Currently these benefits would be limited in duration, as 
the transition period in which CW-1 visas are issued is to expire on 
December 31, 2014, unless extended by DOL.
    While USCIS does not have data to permit a quantitative estimation 
of the benefits \29\ of this provision, the provision is offered in 
response to a request from stakeholder organizations to provide for 
continuing work authorization pending adjudication of extension of stay 
requests filed on behalf of original CW-1 nonimmigrant workers.\30\
---------------------------------------------------------------------------

    \29\ 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, advancement or 
termination by their previous employer and whether the Secretary of 
Labor decides to extend the transition period.
    \30\ 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).
---------------------------------------------------------------------------

    DHS invites impacted stakeholders to provide any additional 
information or data that would permit DHS to quantitatively estimate 
the benefits of this rule as it relates to CW-1 nonimmigrant workers in 
the CNMI and preventing a potential loss of productivity for employers 
who retain their CW-1 nonimmigrant workers.
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 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).
    In this rule, DHS is proposing to allow the substitution of 
comparable evidence (examples might include important patents and 
prestigious, peer-reviewed funding or grants) for that listed in 8 CFR 
204.5(i)(3)(i)(A)-(F) to establish that the EB-1 professor or 
researcher is recognized internationally as outstanding in his or her 
academic field. See proposed 8 CFR 204.5(i)(3)(ii). The other 
requirements remain unchanged. This change is being proposed 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 talents.\31\
---------------------------------------------------------------------------

    \31\ See Letter from Marlene M. Johnson, Executive Director and 
CEO of NAFSA: Association of International Educators, to Ivan K. 
Fong, General Counsel, DHS (April 13, 2011), available at http://www.nafsa.org/uploadedFiles/DHSregreviewcommentApr122011%20public.pdf.
---------------------------------------------------------------------------

    By allowing the submission of comparable evidence, DHS would 
harmonize the evidentiary requirements of the EB-1 outstanding 
professor and researcher category with those currently available to 
employment-based petitioners in both the aliens with extraordinary 
ability category as well as the second-preference employment category 
for a person of exceptional ability.
    This provision of the proposed rule would 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 would provide equity for EB-1 outstanding 
professors and researchers relative to other employment-based immigrant 
status holders listed in 8 CFR 204.5. Because of the expanded types of 
evidence that could be used to support an EB-1 petition, it is possible 
that qualified U.S. employers would find the recruitment of EB-1 
outstanding professors and researchers eased due to this proposed 
provision.
    As shown in Table 6, over the past ten FYs, an average of 91.9 
percent of EB-1 petitions for outstanding professors and researchers 
are approved under the current evidentiary standards. USCIS does not 
have data to indicate which, if any, of the 2,896 petitions that were 
not approved from FY 2003 through FY 2013 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 2003-2013
----------------------------------------------------------------------------------------------------------------
                    FY                       Receipts \32\   Approved \33\      Denied        Percent approved
----------------------------------------------------------------------------------------------------------------
2003......................................           3,434           2,403             278                 89.63
2004......................................           2,864           2,021             375                 84.35
2005......................................           3,089           5,455             391                 93.31

[[Page 26884]]

 
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
                                           ---------------------------------------------------------------------
    Total.................................          35,086          34,464           2,896      10-Yr Avg: 91.88
----------------------------------------------------------------------------------------------------------------
Source: Data provided by USCIS Office of Performance and Quality (OPQ), April 2014.

    DHS welcomes 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 the proposed provision.
---------------------------------------------------------------------------

    \32\ Receipts are those filed within the FY indicated and 
include petitions from new arrivals and those that are seeking to 
adjust status.
    \33\ 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, Pub. L. 104-121 (March 29, 1996), requires Federal agencies to 
consider the potential impact of regulations on small entities during 
the development of their 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. With 
this rule, DHS proposes these revisions to allow for additional 
flexibilities; harmonize the conditions of employment of E-3, H-1B1 and 
CW-1 nonimmigrant workers with other, similarly situated nonimmigrant 
categories; and harmonize 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 flexibilities 
and harmonization provisions proposed would result in any costs for 
impacted U.S. employers including any additional costs for small 
entities.
    As discussed extensively in the regulatory assessment for Executive 
Orders 12866 and 13563 and elsewhere throughout the preamble, this 
proposed rule does not impose any costs on U.S. employers. The proposed 
amendments provide automatic flexibilities and harmonization for U.S. 
employers under current application practices, and do not impose any 
new or additional compliance procedures for these employers.
    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 proposed 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 one 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 proposed 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.

E. Executive Order 13132

    This rule will not have substantial direct effects on the States, 
on the relationship between the National 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, 
all 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 
collections is 1615-0015.
    Under this rule, DHS is proposing to revise the Immigrant Petition 
for Alien Worker, Form I-140, instructions to expand the current list 
of evidentiary criteria to include comparable evidence so that U.S. 
employers petitioning for an EB-1 outstanding professor or researcher 
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 proposes to 
add 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 
alien's eligibility if the listed standards do not readily apply. DHS 
also proposes minor clarifying language updates to the form 
instructions to maintain parity among USCIS forms.
    Accordingly, DHS is requesting comments on revisions for 60-days 
until

[[Page 26885]]

[Insert date 60 days from date of publication in the Federal Register]. 
Comments on this information collection should address one or more of 
the following four points:
    1. Evaluate whether the collection of information is necessary for 
the proper performance of the functions of the agency, including 
whether the information will have practical utility;
    2. Evaluate the accuracy of the agency's estimate of the burden of 
the collection of information, including the validity of the 
methodology and assumptions used;
    3. Enhance the quality, utility, and clarity of the information to 
be collected; and
    4. Minimize the burden of the collection of information on those 
who are to respond, including through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology, e.g., permitting electronic 
submission of responses.
    Overview of information collections for Immigrant Petition for 
Alien Workers, Form I-140:
    a. Type of information collection: Revision of a currently approved 
information collection.
    b. Abstract: This information collection is used by USCIS to 
classify aliens under INA sections 203(b)(1), 203(b)(2), or 203(b)(3).
    c. Title of Form/Collection: Immigrant Petition for Alien Workers.
    d. Agency form number, if any, and the applicable component of the 
Department of Homeland Security sponsoring the collection: Form I-140; 
USCIS.
    e. Affected public who will be asked or required to respond: 
Businesses or other for-profit organizations.
    f. An estimate of the total number of annual respondents: 77,149 
respondents.
    g. Hours per response: 1 hour 5 minutes (1.08 hours) per response.
    h. Total Annual Reporting Burden: 83,321 annual burden hours.
    Comments concerning this information collection can be submitted to 
Chief, Regulatory Coordination Division, Office of Policy and Strategy, 
USCIS, DHS, 20 Massachusetts Avenue NW., Washington, DC 20529-2140.

List of Subjects

8 CFR Part 204

    Administrative practice and procedures, 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 proposed to be amended as follows:

PART 204--IMMIGRANT VISA 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:
0
a. Redesignating paragraphs (i)(3)(ii) and (i)(3)(iii) as paragraphs 
(i)(3)(iii) and paragraph (i)(3)(iv), respectively; and
0
b. Adding a new paragraph (i)(3)(ii).
    The addition reads 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, Pub. L. 104-208, 110 
Stat. 3009-708; Pub. L. 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; Title VII of Pub. L. 110-229; 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:

    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 term ``or'' at the end of paragraph (b)(23);
0
d. Removing ``.'' at the end of paragraph (b)(24) and adding in its 
place ``; or''; and
0
e. Adding new paragraph (b)(25).
    The revisions and addition read as follows:


Sec.  274a.12  Classes of aliens authorized to accept employment.

* * * * *
    (b) * * *

[[Page 26886]]

    (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 who is the beneficiary of a timely 
application for an extension of such stay pursuant to Sec. Sec.  214.2 
or 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. 2014-10733 Filed 5-9-14; 8:45 am]
BILLING CODE 9111-97-P