UPDATE: Final Rule on H-1b1, E-3, CW-1 and EB-1s Published

Several days ago we wrote about the final rule that was about to be published (See this blog post).  The final rule has been published this week and all provisions have been implemented as we reported.  To refresh your memory, below is a summary of the changes:

Changes for those on H-1B1, E-3 or CW-1 non-immigrant visas

Currently, if you are in H-1B status and your employer files a renewal application, you are allowed to continue working for your employer for up to 240 days past the expiration of your old I-94 while the renewal application is pending.  The final rule will extend this to those in H-1B1, E-3 and CW-1 status as well.

Changes to EB-1B regulations

The new rule will also amend the current regulations regarding the EB-1B Outstanding Scholar or Researcher green card application.   It would allow the submission of “comparable evidence” to that listed in the regulatory requirements, if the evidence listed in the regulatory requirements does not readily apply.  Some examples given by USCIS were the award of important patents or the award of  prestigious peer-reviewed grants.  While this type of evidence was typically given to show the meeting of one of the criteria (original contributions of significance in the field), I think that this amendment serves a bigger purpose.  Generally in Extraordinary Ability cases, which has the same language already, when comparable evidence is used, USCIS’s response varies, but in many cases they state that if at least three of the regulatory criteria apply to the field, comparable evidence is not allowed.  These examples clearly show that comparable evidence is not that limited, and should be extended to cases in which the categories do not readily apply to that particular individuals situation.  Time will only tell if USCIS will adopt this reasoning or continue with their current limited reading of “comparable evidence”.

Please do let us know if you have any questions about the final rule. Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

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