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.