With the future of immigration reform still up in the air the Obama administration is forging ahead on its own. On May 6th, as part of an ongoing effort to attract and retain highly skilled immigrants, the Department of Homeland Security announced the publication of two proposed rules which would:

  • Extend employment authorization to spouses of certain H-1B workers, and
  • Enhance opportunities for certain groups of highly-skilled workers by removing obstacles to their remaining in the United States.

Highly-skilled temporary workers often leave the United States because of family concerns, including financial hardship or lost professional opportunities for non-working spouses. The DHS intends for these actions make it easier for businesses to attract and retain valuable H-1B employees. DHS estimates that close to 100,000 spouses of H-1B workers could qualify for work authorization upon implementation of the new regulation.

According to DHS, the proposed regulations will help attract new businesses and new investment to the United States, and increase the competitiveness of our overall workforce. DHS noted that U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields such as science, engineering or computer programming.

Frequently, employers will petition for an immigrant visa for an H-1B worker, which enables individuals to become lawful permanent residents (green cards). At the present time, spouses of H-1B workers are not eligible for employment authorization. The proposed rule would allow spouses of certain H-1B workers to request employment authorization where the H-1B worker has already started the process of seeking lawful permanent residence through employment (click here for the full description of the proposed regulation).

Those eligible for employment authorization would include spouses of H-1B workers meeting the following criteria:

  • Is the beneficiary of an approved Form I-140 immigrant petition for alien worker; or
  • Has been granted an extension of authorized stay under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21).

The second proposed rule is designed to enhance opportunities for highly-skilled workers (click here for a full description). According to DHS, the change to the regulation would:

  • Update the regulations to include nonimmigrant high-skilled specialty occupation professionals 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,
  • Clarify that H-1B1 and principal E-3 nonimmigrants are allowed to work without having to separately apply to DHS for employment authorization.
  • Allow 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.

DHS also proposes 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. DHS believes this proposal would harmonize the regulations for EB-1 outstanding professors and researchers with other employment-based immigrant categories that already allow for submission of comparable evidence, making it easier for these individuals to obtain permanent resident status in the US.