Homeland Security Issues Proposals to Attract/Retain Highly Skilled Immigrants

by Morgan Lewis
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Proposed regulations would grant employment authorization to qualifying H-4 nonimmigrants; apply a 240-day extension of employment authorization to timely filed requests for extensions of stay for E-3, H-1B1, and CW-1 nonimmigrants; and allow submission of “comparable evidence” for outstanding researcher/professor EB-1 immigrant petitions.

On May 6, the U.S. Department of Homeland Security (DHS) announced the publication of two proposed regulations intended to attract new businesses and new investments to the United States and to ensure that the United States “has the most skilled workforce in the world.” These goals are in line with the Obama administration’s stated commitment to attract and retain highly skilled immigrants.

In announcing the proposed changes, Deputy Secretary Alejandro Mayorkas stated that the rules “provide important support to U.S. businesses while also supporting economic growth here in the U.S. These steps will help the U.S. maintain competitiveness with other countries in our efforts to attract the best and the brightest high-skilled workers from around the world to support companies here at home. Businesses continue to need these high-skilled workers, and these rules ensure we do not cede the upper hand to other countries competing for the same talent.”

The proposed regulations would make the following significant changes:

  • Employment authorization would be extended to H-4 nonimmigrant spouses of certain H-1B workers.
  • The 240-day extension of employment authorization would be applied to E-3, H-1B1, and CW-1 petitions.
  • Other “comparable evidence” would be allowed for EB-1 Outstanding Researcher/Professor immigrant petitions.

Extended Employment Authorization to Spouses of Certain H-1B Workers

The first proposed regulatory change would allow H-4 dependent spouses of certain H-1B workers to request employment authorization.

Under existing regulations, DHS does not extend employment authorization to dependent spouses of H-1B workers (H-4 nonimmigrants). The proposed change would allow H-4 dependent spouses of certain H-1B workers to be granted employment authorization, as long as the H-1B worker has reached certain milestones in the employment-based permanent residence process. Eligible individuals would include H-4 dependent spouses of principal H-1B workers who

  • are the beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker, or,
  • have been granted an extension of their authorized period of stay in the United States under the American Competitiveness in the Twenty-First Century Act of 2000 (AC21). AC21 permits certain H-1B workers seeking lawful permanent residence to work and remain in the United States beyond the six-year limit.

Spouses of H-1B nonimmigrants who have not reached these milestones would not be eligible for employment authorization. Note that H-4 dependent children of H-1B workers are not covered by this rule. 

240-Day Employment Extension Applied to E-3, H-1B1, and CW-1 Visa Classifications

The second proposed regulatory change would allow Specialty Occupation nonimmigrant workers from Chile and Singapore (H-1B1 nonimmigrants) and Australia (E-3 nonimmigrants), as well as Commonwealth of the Northern Mariana Island Only Transitional Workers (CW-1 nonimmigrants), with up to 240 days of continued work authorization beyond the expiration date noted on their Form I-94, Arrival/Departure Record, while an extension request is pending.

Under current regulations, nonimmigrants in certain classifications, including H-1B, whose statuses have expired but who have filed timely requests for extensions of stay are authorized to continue employment with the same employer for a period not to exceed 240 days beginning on the date of the expiration of the authorized period of stay.

Under current regulations, employers of workers in the E-3, H-1B1, and CW-1 statuses must file petitions requesting the extension of an employee’s status well before the initial authorized duration of status expires. Those E-3, H-1B1, and CW-1 nonimmigrants whose extension requests are not approved prior to the expiration of their Form I-94 lose work authorization. Under the proposed regulations, the 240-day extension of employment authorization would apply to E-3, H-1B1, and CW-1 nonimmigrants as well.

Note that there is currently no Premium Processing available for E-3, H-1B1, or CW-1 nonimmigrant petitions and that the proposed regulatory changes do not make Premium Processing available for these categories.

Additional “Comparable Evidence” for EB-1 Outstanding Researcher/Professor Petitions

The third proposed regulatory change would also expand the current list of evidentiary criteria for employment-based first preference (EB-1) outstanding professors and researchers to allow the submission of evidence comparable to the other forms of evidence already listed in the regulations. This proposal would harmonize the regulations for EB-1 outstanding professors and researchers with other employment-based immigrant categories, such as EB-1 alien of extraordinary ability, which already allow submission of comparable evidence.

Both notices of proposed rulemaking will soon be published in the Federal Register. DHS encourages the public to comment on the proposed rules through www.regulations.gov. All public comments will be considered before the final rules are published and go into effect. DHS has not yet announced when the proposed rules will be published, how long the comment period will remain open, or when the proposed rules will take effect.

See the DHS announcement here.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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