DHS Announces New Rules To Facilitate Employment for Professionals in Efforts To Attract and Retain Highly Skilled Foreign Workers

by Proskauer Rose LLP
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With immigration reform at a standstill, the Obama administration is taking steps to help businesses attract and retain professionals working in the U.S. The Department of Homeland Security (DHS) announced two major advancements on May 6, 2014.

The first proposed rule change extends employment authorization to spouses of certain H-1B visa beneficiaries. Traditionally, spouses of H-1B visa beneficiaries are granted H-4 status to accompany their H-1B spouse to the U.S. but are not permitted to apply for work authorization in the U.S. The new rule would allow H-4 dependent spouses of certain H-1B nonimmigrant workers to request work authorization, as long as the H-1B worker is already in the process of seeking an employment-based green card. Specifically, the H-4 dependent spouses of principal H-1B workers who are either 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), as amended by the 21st Century Department of Justice Appropriations Authorization Act. AC21 permits H-1B workers seeking lawful permanent residence to work and remain in the United States beyond the six-year statutory limit.

The second proposed rule change focuses on high-skilled specialty occupation nonimmigrant professionals from Chile and Singapore (H-1B1), and from Australia (E-3). Specifically, the change would update the regulation to include these foreign workers in the list of classes of aliens authorized for employment incident to status with a specific employer and would clarify that H-1B1 and principal E-3 nonimmigrants are allowed to work in the U.S. without having to separately apply to DHS for employment authorization.

More critically, the updated regulation will allow nonimmigrant workers in E-3, H-1B1 and CW-1 (Transitional Workers from the Commonwealth of the Northern Mariana Islands (CNMI)) status up to 240 days of continued work authorization beyond the expiration date noted on their Form I-94 Admissions Record, while a request to extend their status is pending with United States Citizenship and Immigration Service (USCIS). Under current regulations, if workers in E-3, H-1B1, or CW-1 are not able to obtain the extension in advance of status expiration, it often leads to a disruption of employment and/or emergent trip abroad. Moreover, this change puts these workers on par with other high-skilled specialty occupation professionals because the 240-day benefit is already available to temporary workers in such categories as the L-1 and H-1B visa classifications.

Finally, this proposal also would expand the current list of criteria for employment-based first preference (EB-1) outstanding professors and researchers to allow for evidence that is comparable to the other forms of evidence currently listed in the regulations. This change makes the regulations for EB-1 outstanding professors and researchers more consistent with other employment-based immigrant categories that already allow for submission of comparable evidence.

DHS Deputy Secretary, Alejandro Mayorkas, said "The proposed rules announced today 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." Mayorkas estimated that 97,000 people could benefit from that rule change in the first year, and 30,000 each year thereafter.

It should be mentioned that although these proposed changes are welcomed, and much needed, they fail to address a significant underlying problem with the country's immigration system because they only impact a limited subgroup of H-1B visa holders. The core problem not addressed in the proposed rules is the significant shortage of the most sought after high-skill specialty occupation nonimmigrant category, the H-1B. By way of example, the USCIS received approximately 172,500 petitions for 85,000 available visas last month, which was the first week of fiscal year (FY) 2015, and had to conduct a computer-generated random selection process (commonly known as the lottery) of all of those petitions. This is a noteworthy increase from FY 2014, when USCIS received approximately 124,000 petitions during the same time period. This shortage can be addressed only by Congress, and should be done so immediately if, as Mr. Mayorkas says, the U.S. wants to remain "competitive." Employers cannot gamble on securing the talent needed to be "competitive" in an ever-globalizing workplace by virtue of lotteries with the odds stacked against them.

The proposed changes will be published in the Federal Register this week and then be open to 60 days of public comment before the administration can implement them.

Proskauer will continue to update its clients directly and through alerts as to H-1B cap developments.

 

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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