DHS Proposes Rule Changes Benefitting Spouses of H-1B Workers and Other Highly Skilled Immigrants

On May 6th, 2014, the Department of Homeland Security (DHS) announced its plans to attract and retain highly skilled immigrants through two proposed rule changes. The proposed rule changes would allow employment authorization for certain spouses of H-1B workers, and would make it easier for highly skilled workers to remain in the United States.

Employment Authorization for Spouses of H-1B Workers

Under the current rules, spouses of H-1B specialized workers in H-4 status must seek their own individual nonimmigrant visa to have employment authorization.  Many must seek their own H-1B visa, which is capped at 65,000 per year (plus an additional 20,000 for those individuals having a U.S. master’s degree).  The proposed rule would allow certain spouses to seek employment authorization. The spouse would be eligible if the H-1B worker: 

  • Is the beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker.; or
  • Has been granted an extension of his or her authorized  period of stay in the United States under the American Competitiveness in the Twenty-First Century Act of 2000 (AC21). 

Removal of Certain Obstacles for Highly Skilled Workers

DHS’s other proposed rule would benefit highly skilled workers by making it easier to stay in the U.S. Specifically, it would benefit the nonimmigrant categories for nonimmigrant high-skilled specialty occupation professionals from Chile and Singapore (H-1B1), Australia (E-3) and transitional workers from the Commonwealth of the Northern Mariana Islands (CW-1). 

Current regulations require H-1B1, E-3, and CW-1 workers to seek extensions well before their nonimmigrant status expires. These workers cannot avail themselves of an authorization that is afforded to other nonimmigrants like H-1B or L-1A/B workers, who are allowed to continue employment after their status expires but while an extension of status is pending. 

The proposed change would update the regulations to allow H-1B1, E-3, and CW-1 workers to maintain work authorization while an extension request is pending for up to 240 days beyond their period of authorized stay noted on the I-94. 

The same proposal would also amplify the evidentiary criteria for employment-based first preference (EB-1) outstanding professors and researchers to allow submission of evidence comparable to other enumerated evidence listed in the regulations. Currently, the regulations allow other employment-based immigrant categories to submit comparable evidence but not for the outstanding professors and researchers category. 

The Notices of Proposed Rulemaking were published on May 12, 2014, in the Federal Register for public comment. These rules will be open for public comment for 60 days, after which time DHS may move forward with implementation of the final rules.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.