In a January 31, 2012 press release, the Department of Homeland Security (DHS) announced plans to reform some administrative practices to ease the visa process and reduce immigration burdens in an effort to retain highly-skilled foreign nationals and attract new business investment to the United States. The proposed reforms are being implemented in line with the White House Startup America Legislative Agenda, which proposes tax breaks, capital for startups, and visa reforms to boost high-skilled workers and entrepreneurs. DHS stated that “the President supports legislative measures that would attract and retain immigrants who create jobs and boost competitiveness in the U.S., including creating a ’Startup Visa,’ strengthening the H-1B program, and ’stapling’ green cards to the diplomas of certain foreign-born graduates in science, technology, engineering, and math (STEM) fields.” DHS did not disclose when the proposed reforms will be implemented, and the changes will not likely take effect for several months or more, until they progress through the federal regulatory approval process.

DHS proposed the following initiatives:

  • Expand eligibility for 17-month extension of Optional Practical Training (OPT)

Under current law, F-1 foreign students are eligible for a 17-month extension of optional practical training (OPT) only if their most recent degree, on which their OPT is based, is in a designated Science, Technology, Engineering, or Mathematics (STEM) field. DHS intends to make a 17-month extension of OPT available not only to F-1 students whose most recent degree is in a STEM field, but also to those who have previously earned a U.S. STEM degree. DHS also indicated that it plans to review new and emerging fields for possible inclusion in the list of eligible STEM degree programs.

  • Allow for additional part-time study for spouses of F-1 students and expand the number of Designated School Officials (DSOs) at schools certified by DHS to enroll international students

This regulatory reform will permit the spouses of F-1 students to enroll in additional academic classes on a part-time basis while the F-1 student is pursuing full-time studies. Under the current regulation, spouses may only take part-time vocational or recreational classes. In addition, schools will have greater flexibility in determining the number of DSOs required at their institutions to meet both the administrative and guidance needs of students.

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

This proposed change will allow H-4 dependent spouses of H-1B visa holders, who have begun the employment-based lawful permanent residence process after meeting a minimum period of H-1B status in the United States, to apply for work authorization. This proposed reform will allow H-4 nonimmigrant spouses to work pending adjudication of the visa holder spouse’s adjustment of status application. Under current law, an H-4 spouse can only apply for work authorization if he or she is the beneficiary of a pending adjustment of status application (the final step in the permanent residence process). It is unclear at what point in the permanent residence process an H-4 dependent spouse will become eligible to apply for work authorization.

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

Under this proposed administrative reform, DHS will accept more types of evidence under the employment-based first preference (EB-1) immigrant visa sub-category of “outstanding professors and researchers” 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. Under the proposed change, DHS will allow “comparable evidence” beyond the specifically articulated regulatory list. This proposed change will harmonize the evidentiary standard for this category with the other EB-1 sub-categories for which DHS already accepts comparable alternative evidence.

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

This proposed regulatory reform will treat E-3 visa holders from Australia and H-1B1 visa holders from Singapore and Chile the same as other employment-based H-1B and L-1 visa holders, by allowing them to continue employment with their current employer for up to 240 days from the expiration of their authorized period of stay, provided a petition to extend their status has been timely filed.

  • February 22, 2012 launch of “Entrepreneurs in Residence” Initiative

On February 22, 2012, USCIS will launch its “Entrepreneurs in Residence” program with an Information Summit that will bring together high-level representatives from the entrepreneurial community, academia and federal government agencies to discuss how to capitalize on the potential of current immigration laws to attract foreign entrepreneurial talent. ”Entrepreneurs in Residence” is an initiative that seeks to use expertise from the public and private sectors to strengthen USCIS policies and practices surrounding immigrant investors, entrepreneurs, and workers with specialized skills, knowledge, or abilities, and to gain insight in areas critical to economic growth. The initiative builds upon DHS’s August 2011 announcement of efforts to promote startup enterprises and spur job creation. DHS stated that the Information Summit will focus on ensuring that immigration pathways for foreign entrepreneurs are clear and consistent, and better reflect today’s business realities. The input gathered at the summit will then inform the work of the Entrepreneurs in Residence tactical team, which will bring business experts in-house to work alongside USCIS staff for a period of approximately 90 days, in an effort to improve adjudication procedures for nonimmigrant benefit categories commonly used by foreign entrepreneurs.

DHS has only indicated that these administrative reforms will be “completed in the future” but, as noted above, it has not articulated a timeline for implementation of the reforms, which will require significant revisions to existing federal regulations. It is impossible to speculate on the full impact of the proposed changes until such time as DHS provides tangible guidance regarding implementation of the reforms. Ogletree Deakins is monitoring developments with respect to the implementation of these proposals and will provide updates in due course.

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