Homeland Security Issues Proposals to Attract/Retain Highly Skilled Immigrants

by Morgan Lewis

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.

© Morgan Lewis | Attorney Advertising

Written by:

Morgan Lewis

Morgan Lewis 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.