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DHS Proposes Regulatory Immigration Reforms

US Capitol Rotunda, Washington DC, 147707780On January 31, 2012, DHS announced a series of regulatory immigration reforms with a view toward attracting and retaining highly skilled immigrants.

What are Regulatory Immigration Reforms?

Although President Obama supports more comprehensive US immigration reforms, including creation of a Startup Visa category, strengthening the H-1B visa program, and providing a Green Card to certain graduates of programs in science, technology, engineering and mathematics (STEM), this type of immigration reform is currently a long-term goal. However, regulatory immigration reforms are measures that agencies such as the Department of Homeland Security (DHS) can take on their own initiative. For this reason, these are shorter-term goals that may be implemented as soon as the rulemaking process for each is complete. The proposed DHS regulatory reforms are listed below.

Six Proposed DHS Regulatory Immigration Reforms

Expand eligibility for 17-month extension of optional practical training (OPT) for F-1 students to include students with prior degree in Science, Technology, Engineering and Mathematics (STEM)

Currently, an F-1 student may only engage in optional practical training (OPT) for 12 months. F-1 students who graduate in programs of study classified as STEM can obtain a 17-month extension of OPT as part of their F-1 status if the degree they were conferred is included on the list of eligible STEM degree programs. This proposed change would expand eligibility for extension of OPT by including students with a STEM degree that is not the most recent degree the student has received. Furthermore,due to the dynamic nature of STEM related education and training, DHS will continue to review emerging fields for possible inclusion in the list of eligible STEM degree programs.

Allow additional part-time study for spouses of F-1 students and expand number of Designated School Officials (DSOs) at schools certified by DHS to enroll international students.

This regulatory reform would allow spouses of F-1 students to enroll in additional part-time academic classes while their spouses are pursuing full-time studies. Presently, under the current regulation, F-1 spouses may only take part-time vocational or recreational classes. Schools would also be given increased flexibility to determine the number of DSOs needed at their institution to meet both the administrative and guidance needs of students.

Provide work authorization for spouses of certain H-1B holders.

This proposed change to the current DHS regulation would allow certain spouses of H-1B visa holders to legally work while their H-1B visa holder spouse waits for his or her adjustment of status application (final stage of Green Card application) to be adjudicated. Specifically, employment will be authorized for H-4 dependent spouses of principal H-1B visa holders who have begun the process of seeking lawful permanent resident status (LPR) through employment after meeting a minimum period of H-1B status in the US.

Allow outstanding professors and researchers to present a broader scope of evidence of academic achievement.

This proposed change to the current DHS regulation would increase the types of evidence that employers can submit to demonstrate that a professor or researcher is among the very best in their field. Presently, applicants for the employment-based immigrant visa category of outstanding professors and researchers (EB-1 Outstanding Professor/ Researcher) are limited to specific types of evidence listed by regulation. This would allow “comparable evidence” beyond the specifically articulated regulatory list. This change will harmonize the evidentiary standard for this category with the other exceptional ability immigrant visa categories.

Harmonize rules to allow E-3 visa holders from Australia and H-1B1 visa holders from Singapore or Chile to continue working with their current employers for up to 240 days while their H-1B1 extension petitions are pending.

This proposed regulation would treat E-3 Visa and H-1B1 Visa holders the same as other employment-based H-1B and L-1 visa holders by allowing them to continue employment with their current employers for up to 240 days from the expiration of their E-3 or H-1B1 authorized period of stay, if a petition to extend their status has been timely filed.

Launch Entrepreneurs in Residence Initiative

On February 22, 2012, USCIS will launch its Entrepreneurs in Residence initiative with an Information Summit in Silicon Valley, CA. The Initiative will bring together high-level representatives from the entrepreneurial community, academia, and federal government agencies to discuss how to maximize current immigration laws’ potential to attract foreign entrepreneurial talent.

The Entrepreneurs in Residence initiative builds upon DHS’s August announcement of efforts to promote startup enterprises and spur job creation. The Information Summit will focus on ensuring that immigration pathways for foreign entrepreneurs are clear and consistent, and better reflect today’s business realities. The Summit will include a special recognition of outstanding contributions made by immigrant entrepreneurs to our nation’s economic growth and prosperity. The input gathered at the summit will inform the work of the Entrepreneurs in Residence tactical team, which will bring business experts in-house to work alongside USCIS staff for a period of approximately 90 days. Following the summit, the tactical team will convene in Washington, DC to begin its work. To learn more about the summit, please visit Entrepreneurs in Residence Information Summit.