Today the Department of Homeland Security (DHS) announced that it is publishing two proposed rules that are meant to help “attract and retain highly skilled workers”. Proposed rules do not go into effect until notice and comment has been completed pursuant to the Administrative Procedures Act.

The first proposed rule would allow spouses of certain H-1B holders to work. It appears from the information now available that to qualify:

• The spouse must be in H-4 status
• The principal H-1B holder must have an approved I-140 or have extended his/her H-1B pursuant to AC21 (after the six year initial period pursuant to a timely PERM or I-140 filing)

Although not specifically mentioned, we expect that an application for an employment authorization document (EAD) will be required. The application requires a fee of $380 and takes up to 90 days to process.

A proposed rule can change during the comment process, so stay tuned.

The second change would allow those filing for the EB1 outstanding professor or researcher category to use “similar comparable evidence” to the list of specific evidence existing in the current rule. This change would conform the EB1 OR category to the EB1 extraordinary ability category in this regard.  

While welcome, we are skeptical about the impact of this change if it is not accompanied by a change in the overall interpretation of EB1, which has become increasingly strict. Again, stay tuned for updates.

The third rule would allow the automatic 240-day extension of work permission for E-3, H-1B1, and CW-1 workers upon filing of a request for extension of stay, the same rule that applies to most other temporary work visa categories. This is nice if you are in one of these categories.

We salute DHS Deputy Secretary Alejandro Mayorkas and his team for realizing the structural problems that hamper attraction and retention of talent in the U.S. If only he could do something about the H-1B cap through rule-making...