Proposed Regulations to Assist High Skilled Workers Moderately Positive

On May 6, 2014, US Department of Homeland Security announced some proposed regulations that would ease some of the pain being experienced by highly educated/skilled foreign nationals in the United States.

“The proposed rules announced today provide important support to U.S. businesses while also supporting economic growth here in the U.S.,” said Deputy Secretary Alejandro Mayorkas. “These steps will help the U.S. maintain competitiveness with other countries in our efforts to attract the best and the brightest high-skilled workers from around the world to support companies here at home. Businesses continue to need these high-skilled workers, and these rules ensure we do not cede the upper hand to other countries competing for the same talent.”

One of the proposed rules will assist H-1B dependent spouses in H-4 status. Currently, H-4 visa holders are ineligible for work authorization under any circumstances. In the proposed regulation, H-4 dependent spouses of certain H-1B non-immigrant workers could request employment authorization so long as the H-1B worker has already started the process of seeking lawful permanent residence through employment. Eligible individuals would include H-4 dependent spouses who:

• Are the beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker;
• 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.)

The second proposed rule would 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 submission of comparable evidence.

Finally, a regulation would be updated to allow non-immigrant visa holders in E-3, H-1B1 (Chile/Singapore) status could obtain 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. Under current regulations, employers of workers in E-3, H-1B1, or CW-1 status must file a petition requesting the extension of the employee’s status well before the initial authorized duration of status expires.

While these changes are positive, they are moderate reforms and long overdue. But nevertheless, positive news is “few and far between” in immigration law in 2014. Any questions about the regulatory changes impacting H-4 spouses or other high-skilled workers, please contact Boulder attorney Catherine Brown at 303-322-2117.