On May 6, 2014, the Department of Homeland Security (DHS) announced that two proposals will soon be published in the Federal Register pursuant to the White House's recent announcement and commitment to entrepreneurship and to attract and retain highly skilled immigrants. This DHS announcement indicated that all public comments will be considered before the final rules are published and go into effect. 

This announcement from DHS comes as a follow-up to information released by the White House on April 7, 2014, to explain President Obama's commitment to increasing the success of entrepreneurs across the United States. The Obama administration wants to focus on the following:

Attracting the World's Best and Brightest: The Department of Homeland Security (DHS) will soon publish several proposed rules that will make the United States more attractive to talented foreign entrepreneurs and other high-skill immigrants who will contribute substantially to the U.S. economy, create jobs and enhance American innovative competitiveness. These proposed regulations include rules authorizing employment for spouses of certain high-skill workers on H-1B visas, as well as enhancing opportunities for outstanding professors and researchers. These measures build on continuing DHS efforts to streamline, eliminate inefficiency and increase the transparency of the existing immigration system, such as by the launch of Entrepreneur Pathways, an online resource center that gives immigrant entrepreneurs an intuitive way to navigate opportunities to start and grow a business in the United States.

See April 7, 2014, Fact Sheet: Strengthening Entrepreneurship at Home and Abroad

Outlined below are the two proposals announced by DHS:

Proposed Rule to Allow Certain H-4 Spouses to Obtain Work Authorization

The proposed rule will allow certain H-4 spouses to obtain work authorization. As background, H-4 status is the dependent visa status to the H-1B work visa category. Spouses to H-1B workers can obtain H-4 status in the U.S. based on their marriage to the H-1B worker. The proposal does not allow for work authorization to be extended to all H-4 spouses. Currently, H-4 spouses cannot apply for obtain work authorization as part of their H-4 dependent status. USCIS does allow spouses in L-2 and E status to apply for and obtain work authorization. It is expected that the H-4 spouses who will be able to obtain work authorization pursuant to their H-4 status will apply under similar procedures to the spouses of L-1 and E visa holders.

The proposed rule will allow work authorization to be applied for by H-4 dependent spouses of principal H-1B workers who:

  • Are the beneficiaries of an approved I-140 Immigrant Petition for Alien Worker; or
  • Have been granted an extension of their authorized period of stay in the United States under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) as amended by the 21st Century Department of Justice Appropriations Authorization Act. AC21 permits H-1B workers seeking lawful permanent residence to work and remain in the United States beyond the six-year limit.

Proposal to Enhance Opportunities for Skilled Workers

In addition to providing H-4 work authorization for certain spouses of H-1B visa holders, the DHS proposal will also provide for the following:

  • Update and clarify current immigration rules regarding H-1B1 professionals from Chile and Singapore and E-3 professionals from Australia;
  • 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 card, while an extension petition is pending with USCIS (this will make these nonimmigrant work visa classifications consistent with other nonimmigrant work visa classifications); and
  • Expand the list of evidentiary criteria for employment-based EB-1 outstanding professors and researchers to allow for the submission of "comparable evidence" which is already allowed for other employment-based immigrant visa categories.

Clearly, the Obama administration is moving forward with these changes to allow U.S. businesses to retain highly skilled professionals that provide high value to the U.S. economy. With the H-1B cap exhausted within days of filing again this year, and the severe backlogs in the employment-based permanent residence process, these small changes are a step in the right direction. However, more immigration reform is needed if the U.S. truly wants to attract and retain the world's best and brightest. We will provide additional updates on these new proposals as they become available.

For additional information and developments regarding this announcement and the proposed rule, please see the May 6 press release from the Department of Homeland Security.