Special Immigration Alert: DHS Issues Proposed Rules to Retain Highly Skilled Foreign Workers

by Epstein Becker & Green

DHS Proposes to Issue Employment Authorization to Certain H-4 Spouses

On May 12, 2014, the U.S. Department of Homeland Security ("DHS") proposed a rule that would authorize employment authorization for certain H-4 dependent spouses of principal H-1B nonimmigrants who are in the process of seeking lawful permanent resident ("LPR") status through employment. Currently, H-4 spouses are prohibited from seeking employment authorization and, thus, are prohibited from working until their green card applications are approved. In many cases, approval of green card applications can take several years due to quota backlogs. The delays have imposed substantial financial hardships on the families. The DHS rule is designed as an inducement to convince these foreign nationals ("FNs") to stick out the process rather than leave for other jurisdictions, where the permanent residence process might be faster or easier.

This proposed change would apply to the H-4 dependent spouses of H-1B nonimmigrants who either are the beneficiaries of an approved employment-based I-140 immigrant petition or have been granted an extension of their authorized H-1B period of admission in the United States under the American Competitiveness in the Twenty-First Century Act of 2000 ("AC21"). Most AC21 extensions apply to H-1B employees who are the beneficiaries of either a Labor Certification ("ETA 9089") or an employment-based I-140 immigrant petition that has been pending for at least 365 days before the H-1B employees reach the end of their sixth year of H-1B status. The H-4 dependents of these H-1B employees also are entitled to an extension. Currently, DHS estimates that there are approximately 100,000 H-4 dependent spouses in this situation. For this reason, the proposed rule would have a substantial impact on this FN population.

Without this regulatory change, many of these H-4 dependent spouses would remain mired in bureaucratic limbo. Under the current immigration laws, approval of an I-140 immigrant petition does not entitle an H-1B employee to apply for permanent residence. Instead, the H-1B employee must wait until an immigrant visa number is available. This can take several years. For instance, the Department of State's May 2014 Visa Bulletin indicates that, for Indian Nationals in the employment-based third preference ("EB-3") and the employment-based second preference ("EB-2") categories, DHS is adjudicating green card applications filed in October of 2003 and November of 2004, respectively! This means that immigrant visa numbers are available only for those employees who are the beneficiaries of Labor Certification Applications or I-140 immigrant petitions that were filed a decade ago.

This regulatory change would lessen the potential economic impact to the H-1B principal and H-4 dependent spouse during the often lengthy transition to permanent residence status. By removing this disincentive for foreign workers to continue pursuing permanent residence in the United States, the DHS rule would further the important domestic goals of attracting and retaining these highly skilled foreign workers.

DHS Proposes to Enhance Flexibility for Highly Skilled Specialty Occupation Professionals

On May 12, 2014, the DHS proposed a rule that would include several updates to enhance employment opportunities for highly skilled workers. DHS proposed to add nonimmigrant highly skilled specialty occupation professionals from Chile (H-1B1), Australia (E-3), and the Commonwealth of the Northern Mariana Islands ("CMNI")-Only Transitional Workers ("CW-1") to the list of aliens authorized for employment incident to status with a specific employer. This means that H-1B1 and principal E-3 and CW-1 nonimmigrants would be included in the groups of temporary nonimmigrant workers entitled to continued employment authorization for up to 240 days if the employer has timely filed for an extension of a beneficiary's nonimmigrant status. Currently, this 240-day grace period applies only to other nonimmigrant classifications, such as H-1B and L-1A. DHS hopes that, by expanding these regulatory protections to cover E-3, H-1B1, and CW-1 nonimmigrants, potential interruptions of employment for these employees will be avoided.

DHS also proposed to 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 that already allow for the submission of comparable evidence. Again, the expectation is that this would facilitate the recruitment and retention of these outstanding individuals.


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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