The Department of Homeland Security (DHS) has issued two proposed rules that affect the highly skilled. Both rules provide benefits, but in the grand scheme of immigration reform, the benefits are very limited and affect a limited class of foreign nationals.
The first DHS proposal would extend the availability of work authorization to H-4 dependent spouses of principal H-1B nonimmigrants. The extension would be limited, however, to H-4 dependent spouses of principal H-1B nonimmigrants who are in the process of seeking lawful permanent resident status through employment and who already have passed some of the hurdles. This includes those H-1Bs who are either the beneficiaries of an approved I-140 immigrant visa petition or whose stay in the U.S. has been extended under the American Competitiveness in the 21st Century Act (AC21), which allows H-1B workers seeking lawful permanent residence to stay and work in the U.S. beyond the normal six-year limit. Some 97,000 spouses are expected to become eligible for work authorization in the first year after the rule is finalized, with about 30,000 eligible annually. This still leaves, however, many H-1B visa holders’ spouses unable to work.
The second proposed rule would update existing regulations to include professional specialty workers from Chile and Singapore (H-1B1) and from Australia (E-3) in the list of classes of foreign national visa holders authorized for employment incident to status with a specific employer — in other words, not required to apply separately to DHS for work authorization — and permitting H-1B1 and E-3 workers up to 240 days of continued work authorization while they await approval of their status extension requests. The proposal also includes Commonwealth of the Northern Mariana Islands–only transitional workers (CW-1). These rules currently apply to H-1B nonimmigrants. The rule would also permit foreign nationals applying for EB-1 visas to prove their academic achievements through evidence that does not appear in the current list of acceptable evidence. Instead, evidence that is “comparable” to the types of evidence listed in the regulations would be acceptable.
According to DHS, it is proposing these changes to benefit these highly skilled workers and CW-1 transitional workers by removing unnecessary hurdles that place such workers at a disadvantage when compared to similarly situated workers in other visa classifications.
The comment period ends in July, after which DHS must issue final rules before the proposals go into effect.