The Department of Homeland Security (DHS) announced today that it is  pushing forward proposals to attract and retain highly skilled immigrants.  This is a big deal not only for immigrants, but also employers.  The proposed rules include a rule to extend employment authorization to spouses ofcertain H-1B workers and a proposal to enhance opportunities for certain groups of highly-skilled workers.  The term “certain” is important here.

Here’s what DHS is proposing to do:

  • Issue a proposed rule to extend employment authorization to spouses of certain H-1B workers who are in H-4 status.  Big deal as this has not been the case previously and it means employers will see a new group of individuals eligible for employment when completing the Form I-9.  The proposed rule will amend existing regulations to allow H-4 dependent spouses of certain principal H-1B workers to request employment authorization.  By “certain” DHS means that the spouse can apply as long as the H-1B worker has started the process of seeking lawful permanent residence through employment.
  • Issue a proposed rule with respect to other highly skilled immigrants by:
    • Updating the regulations to include nonimmigrants from Chile and Singapore (H-1B1) and from Australia (E-3) in the list of classes of aliens authorized for employment incident to status with a specific employer;
    • Clarifying that H-1B1 and principal E-3 nonimmigrants are allowed to work without having to separately apply to DHS for employment authorization; and,
    • Allowing E-3, H-1B1 and CW-1 nonimmigrant workers up to 240 days of continued work authorization beyond the expiration date noted on their Form I-94, Arrival/Departure Record, while the extension request is pending.
  • Under current regulations, employers of workers in E-3,  H-1B1, or CW-1 status must generally file a petition requesting the extension of the employee’s status well before the initial authorized duration of status expires.  Employers who hire individuals in these non-immigrant visa categories will need to be cognizant of these changes when completing the Form I-9, including when re-verifying their status in Section 3 of the Form I-9.

According to the Administration, “’these two proposed rule changes are an integral part of the Administration’s efforts to strengthen entrepreneurship and innovation, and to help the United States attract and retain highly skilled immigrants,” said U.S. Secretary of Commerce Penny Pritzker. “The fact is, we must do more to retain and attract world-class talent to the United States and these regulations put us on a path to doing that. These actions promise to unleash more of the extraordinary contributions that immigrants have always made to America’s innovation economy.’”  Go Team USA!

Both Notices of Proposed Rulemaking will soon publish in the Federal Register.