DHS Publishes Proposed Rules to Attract and Retain Highly-Skilled Immigrants

On May 6, 2014, the U.S. Department of Homeland Security (DHS) announced the publication of two proposed rules that reflect the Obama Administration’s “continuing commitment to attract and retain highly skilled immigrants.” The first regulation would extend employment authorization to spouses of certain H-1B workers. The second rule would ease restrictions on employment authorization for certain groups of highly-skilled immigrant workers and expand visa eligibility criteria for others.

DHS proposed similar initiatives in January 2012 as part of its continued desire to engage in procedural practices aimed at retaining highly-skilled foreign nationals and attracting new business investment to the United States. Additionally, last year, a Notice of Proposed Rulemaking (NPRM) was issued by DHS indicating its intention to pursue a comparable regulation to expand work authorization to certain categories of H-4 dependent spouses.

DHS Deputy Secretary Alejandro Mayorkas and Commerce Secretary Penny Pritzker stated that the proposed rules will further economic growth and assist the United States to remain competitive in efforts to attract and retain highly-skilled, world-class talent to support U.S. businesses. Such actions are necessary to “ensure we do not cede the upper hand to other countries competing for the same talent,” and to “unleash more of the extraordinary contributions that immigrants have always made to America’s innovation economy.”

1. Work authorization for spouses of certain H-1B holders

This proposed rule would amend existing regulations to allow H-4 dependent spouses of certain principal H-1B workers to request employment authorization. Under current law, employment authorization is not extended to an H-4 spouse unless he or she is the derivative beneficiary of a pending adjustment of status application (the final step in the permanent residence process). The proposed change would allow H-4 dependent spouses to request employment authorization at an earlier stage, provided the principal H-1B holder has started the process of seeking lawful permanent residence through employment. More specifically, the H-4 spouse would be eligible for work authorization if the H-1B worker has an approved Form I-140, Immigrant Petition for Alien Worker (the second stage in the permanent residence process following PERM approval) or has been granted an extension of his or her authorized period of stay under the American Competitiveness in the Twenty-First Century Act of 2000 (AC21), as amended. AC21 allows H-1B holders seeking lawful permanent residence to work and remain in the United States beyond the six-year limit.

2. Enhanced opportunities for certain groups of highly-skilled workers

The second proposed regulatory change would enhance opportunities for certain groups of highly-skilled foreign nationals “by removing obstacles to their remaining in the United States.” The proposed rule would: (a) incorporate highly-skilled professionals from Chile and Singapore (H-1B1) and from Australia (E-3) within the classes of foreign nationals authorized for employment on the basis of their status with a specific employer; (b) allow H-1B1 and principal E-3 nonimmigrants to work without filing a separate application for employment authorization; and (c) make the “240-day rule” available to those with E-3, H-1B1, and CW-1 status. The “240-day rule” allows foreign nationals, in certain nonimmigrant categories, 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. Under current law, a petition to extend the status of E-3, H-1B1, or CW-1 workers must generally be filed well before the expiration of the initial authorized period of stay.

This proposed change would also reform the employment-based first preference (EB-1) “outstanding professor/researcher” category to allow DHS to accept a broader scope 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.

Both NPRMs will soon be published in the Federal Register and the public may comment on the regulatory proposals through www.regulations.gov. As part of the federal regulatory process, DHS will consider this public feedback and make appropriate changes. The agency will then publish final rules in the Federal Register with the specific dates upon which the rules become effective and enforceable.

Ogletree Deakins is monitoring developments and will provide updates as more information becomes available.