DHS Proposes New Rules to Attract, Retain Highly Skilled Immigrants

Maggio Kattar

by Mark Yelich, Senior Attorney

On May 6, 2014, the U.S. Department of Homeland Security (DHS) announced two proposed rules aimed to attract and retain highly skilled immigrants in the U.S.

One of the proposed rules would extend employment authorization to spouses of certain H-1B workers. The H-1B visa is used by employers to hire skilled foreign national professionals. The spouse, and children under 21, of an H-1B worker, may apply for an H-4 visa so that they can reside in the U.S. However, unlike some other visas for professional workers, H-4 spouses are not currently eligible to apply for and obtain employment authorization. The proposed rule would add employment eligibility for certain H-4 spouses based on the H-1B spouse reaching certain milestones in the legal permanent residency (green card) process.

Specifically, it is proposed that H-4 spouses could obtain employment authorization where the H-1B:

  • Is the beneficiary of an approved Form I-140 immigrant (green card) petition; or
  • Is the beneficiary of an extension under the American Competitiveness in the 21st Century Act of 2000 (AC21). AC21 allows H-1B workers to extend their H-1B period beyond the six-year maximum based on green card sponsorship.

The second proposed rule seeks to bring a level of consistency and alignment for specialty occupation worker visas and remove obstacles for high skilled and transitional workers to remain in the United States. The proposed changes specifically address some of the inconsistencies that exist for specialty occupation workers from Chile, Singapore, and Australia as well as foreign nationals hired by employers in the Commonwealth of the Northern Mariana Islands (CNMI) under CW-1 visas, and include:

  • Adding H-1B1 specialty occupation workers from Chile and Singapore, and E-3 specialty occupation workers from Australia to the list of foreign nationals authorized for employment incident to status with a specific employer;
  • Clarifying that H-1B1 and principal E-3 nonimmigrants are permitted to work without having to separately apply to DHS for employment authorization; and
  • Allowing E-3, H-1B1, and CW-1 nonimmigrant workers up to 240 days of continued work authorization beyond their I-94 expiration date where a timely extension request is filed and remains pending.

Additionally, the second proposed rule expands the acceptable evidentiary criteria for EB-1 outstanding professors and researchers. The proposed rule will allow applicants to submit documentation that is substantially similar to, but not specifically listed, in the existing regulations. Currently, there are instances were substitute evidence, that proves an applicant’s qualifications for the category, is not being accepted by USCIS adjudications officers because it is not specifically listed in the existing regulations. This new rule would allow additional latitude for adjudications officers to use discretion in determining whether an individual qualifies as an Outstanding Professor or Researcher under the regulations.

Although the second proposed rule contains mostly technical or procedural changes, it is a welcome change to see that the different visa categories might become more aligned and consistent. For example, companies that employ E-3 Australians typically wonder why they have to file so far in advance or why the employee has to travel abroad to apply for a new E-3 visa stamp at a U.S. Consulate, whereas these issues usually do not affect other skilled occupation (professional) visas such as H-1B, L-1, or TN visas. The flexibility proposed in the 240-day provision would serve as a valuable tool and minimize disruptions to business operations. In addition, we hope that premium processing for E-3 and H-1B1 visas could be added through the notice and comment period, or that USCIS will update these two visa categories as eligible for premium processing.

Stay tuned. We will post the Federal Register notices as soon as they are available.