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DHS Proposal for H4 Spouse Work Authorization

glittering background 112144808On May 6, 2014, DHS announced proposals for H4 spouse work authorization (work authorization for H4 spouses of certain H1B holders), among other things, in an attempt to attract and retain highly skilled immigrants in the US. Specifically, on May 12, 2014, the DHS published two proposed rules: (1) to extend employment authorization to H4 spouses of certain H1B workers; and, (2) to enhance opportunities for highly-skilled workers by removing obstacles to their remaining in the US. Together, DHS hopes that these proposed rules will help attract new businesses and new investment to the US and ensure that the US has the world’s most skilled workforce. Note that DHS must obtain and consider public commentary before these proposed rules go into effect in accordance with administrative rulemaking procedures.

“The proposed rules announced today provide important support to US businesses while also supporting economic growth here in the US,” said Deputy Secretary Alejandro Mayorkas. “These steps will help the US 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.”

“These two proposed rule changes are an integral part of the Administration’s efforts to strengthen entrepreneurship and innovation, and to help the United States attract and retain highly skilled immigrants,” said US Secretary of Commerce Penny Pritzker. “The fact is, we must do more to retain and attract world-class talent to the United States and these regulations put us on a path to doing that. These actions promise to unleash more of the extraordinary contributions that immigrants have always made to America’s innovation economy.”

Both Notices of Proposed Rulemaking will soon be published in the Federal Register. (See published Proposed H4 Spouse Work Authorization Rule and Enhancing Opportunities for High-Skilled Specialty Occupation Professionals.) DHS encourages public comment on these proposed rules through www.regulations.gov. The public comment period ends 60 days from publication of the Proposed Rule, or 07/11/2014. All public comments will be considered before the final rules are published and go into effect.

Proposed Rule for H4 Spouse Work Authorization

The proposed H4 Spouse Work Authorization rule will amend existing regulations to allow H4 dependent spouses of certain principal H1B workers to request US employment authorization.

US businesses use the H1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields such as science, engineering or computer programming. Frequently, employers petition for an immigrant visa for an H1B worker, which enables individuals to become lawful permanent residents. Lawful permanent residents are generally eligible to become naturalized US citizens after five years.

Under existing regulations, DHS does not extend employment authorization to H4 dependents of H1B nonimmigrant workers. The change proposed by DHS, would allow H4 dependent spouses of certain H1B nonimmigrant workers to request employment authorization, if the principal H1B worker has already started the process of seeking lawful permanent residence through employment.

Eligible individuals would include H4 dependent spouses of principal H1B workers who:

  • Are the beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or,
  • Have been granted an extension of their authorized period of stay in the US 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 H1B workers seeking lawful permanent residence to work and remain in the US beyond the six-year limit.

Proposal to Enhance Opportunities for Highly-Skilled Workers

This proposed regulatory change would enhance opportunities for certain groups of highly-skilled and transitional workers by removing obstacles to their remaining in the United States. (See Enhancing Opportunities for High-Skilled Specialty Occupation Professionals for text of this proposed rule.)

Changes in Regulations for H1B1 (Chile and Singapore), E-3 (Australia) and CW-1 Workers

Specifically, the change to the regulation would:

  • Update the regulations to include nonimmigrant high-skilled specialty occupation professionals from Chile and Singapore (H1B1) and from Australia (E-3) in the list of classes of aliens authorized for employment incident to status with a specific employer;
  • Clarify that H1B1 and principal E-3 nonimmigrants are allowed to work without having to separately apply to DHS for employment authorization;
  • Allow E-3, H1B1 and CW-1 nonimmigrant workers up to 240 days of continued work authorization beyond the expiration date noted on their Form I-94, Arrival/Departure Record, while an extension request is pending.

This rule would affect workers in specialty occupation nonimmigrant classifications for professionals from Chile and Singapore (H1B1) and Australia (E-3), as well as Commonwealth of the Northern Mariana Island (CNMI)-Only Transitional Workers (CW-1).

Under current regulations, employers of workers in E-3, H1B1, or CW-1 status must generally file a petition requesting the extension of the employee’s status well before the initial authorized duration of status expires.

Expansion of Evidentiary Criteria for EB1 Outstanding Professors or Researchers

This proposal would also expand the current list of evidentiary criteria for employment-based first preference (EB1) outstanding professors or 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 EB1 outstanding professors and researchers with other employment-based immigrant categories that already allow for submission of comparable evidence.

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