The Department of Homeland Security (“DHS”) has announced a proposal that would extend employment authorization to spouses of certain H-1B workers, as well as a proposal that would remove obstacles for certain groups of highly‑skilled workers to remain in the United States.  The new rule is the latest in a series of administrative actions President Barack Obama has announced as efforts to win broad immigration reform in Congress have failed.

The rule change is set to be published in the Federal Register sometime this week and if it survives the rulemaking process, the rule could partially satisfy requests from the tech industry for the government to make it easier to attract and keep foreign workers trained in science, technology, engineering and math, and is part of the administration’s response to the demand for increased visas for foreign professionals.  In April, the 85,000 H-1B visas available for 2015 were exhausted in just a week.  The same thing happened last year.  The proposed rule changes also acknowledge one of the key elements of the immigration debate:  the huge waiting period for “green cards.”  Currently some applicants must wait up to 11 years to get their permanent residency.

Spouses of Certain H-1B Workers

The proposed rule would allow work authorization for H-4 dependent spouses of H-1B workers with an approved Form I-140 (Immigrant Petition for Alien Worker) or who have been granted a visa extension beyond the 6-year maximum period allowed in H-1B status under the American Competitiveness in the Twenty-first Century Act of 2000 (“AC21”) because they have begun seeking permanent residence in the U.S.

Professionals from Chile, Singapore, Australia and Northern Mariana Islands

The second proposed rule would update regulations making it easier for professionals from Chile, Singapore (H-1B1), Australia (E-3), as well as Transitional Workers from the Northern Mariana Islands (CW-1) to work and stay in the United States.  Specifically, the proposed change would:

  • Update the regulations to include nonimmigrant high-skilled specialty occupations from Chile, Singapore and Australia 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, and
  • Allow H-1B1, E-3 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 an extension request is pending.  Under current regulations, employers of these workers must generally file a petition requesting the extension of the employee’s status well before their authorized status expires.

EB-1 Outstanding Professors and Researchers

The proposal would also broaden and expand the type of evidence professors and researchers can present to make it easier for them to request employment-based first preference (EB-1) immigrant visas.  Specifically, the rule would allow the submission of evidence comparable to 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 submission of comparable evidence.

The rule change is still only a proposal until it successfully makes it through the entire rulemaking process.   Department of Homeland Security officials are seeking comment on the proposal, which is expected to go into effect sometime later this year.  The proposed changes will be published in the Federal Register  this week and will be open to 60 days of public comment before the administration can implement them.  In the meantime, DHS Deputy Secretary Alejandro Mayorkas has said, and we agree, that these kinds of actions “do not replace the need” for comprehensive immigration reform which can only be enacted by Congress.