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

by Proskauer Rose LLP

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.

© Proskauer Rose LLP | Attorney Advertising

Written by:

Proskauer Rose LLP

Proskauer Rose LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.