DHS Outlines Plans to Attract and Retain Highly-Skilled Immigrants and Entrepreneurs

The Department of Homeland Security (DHS) has announced its continued desire to engage in procedural practices aimed at retaining highly-skilled foreign nationals and attracting new business investment to the United States. Such practices are in line with the year-old White House Startup America Legislative Agenda, which proposes tax breaks, capital for startups, and regulatory modifications to minimize immigration-related barriers. The Administration has long voiced support for immigration reforms, such as a “Startup Visa” and the strengthening of the H-1B program, and has even incorporated into its press statements the increasingly popular political catchphrase – “‘stapling’ green cards to the diplomas of certain foreign-born graduates in science, technology, engineering, and mathematics (STEM) fields.” While some changes were in place prior to this announcement, others must progress through the federal regulatory process before implementation.

Immigration initiatives of significance to employers include:

• Increase Optional Practical Training time for STEM-discipline students

Generally, an F-1 student may only engage in Optional Practical Training (OPT) for 12 months. F-1 students who graduate from designated STEM programs can obtain a 17-month extension of OPT. The proposed change would expand eligibility for OPT extensions to include students who have earned a STEM degree at any time, no longer limiting the extension to those whose most recent degree was from a STEM program. The Administration also pledged to review emerging fields for possible inclusion in the STEM-Designated Degree Program List, which was most recently expanded in 2011.

• Provide work authorization for spouses of certain H-1B holders

The DHS announcement also describes a change in which “employment will be authorized for H-4 dependent spouses of principal H-1B visa holders who have begun the process of seeking lawful permanent resident status through employment after meeting a minimum period of H-1B status in the U.S.” Under current law, an H-4 spouse can apply for work authorization if he or she is the derivative beneficiary of a pending adjustment of status application (the final step in the permanent residence process). It is unclear if this proposed change would allow an H-4 spouse to apply for work authorization even earlier in the process.

• Allow “Outstanding Professors and Researchers” to present a broader scope of evidence of academic achievement

A proposed reform of the employment-based first preference (EB-1) “outstanding professor/researcher” category would allow the DHS to accept a greater variety of evidence to establish that the beneficiary is internationally recognized as outstanding in a particular academic field. Under current regulations, petitioning employers are limited to six specific categories of acceptable evidence. Proposed changes would allow for “comparable evidence” beyond the specifically articulated regulatory list.

• Standardize rules to permit continued work authorization for E-3 and H-1B1 visa holders with pending extensions

This proposed change would make the “240-day rule” available to those with E-3 (Australia) and H-1B1 (Singapore and Chile) status. The “240-day rule” allows foreign nationals, in certain nonimmigrant categories (e.g., H-1B and L-1), who have timely-filed extension of status requests, to continue working for the same employer for up to 240 days from the expiration of their authorized period of stay.

The DHS did not articulate a timeline for implementation of many of the proposals. Ogletree Deakins is monitoring developments and will provide updates as more information becomes available.