DHS publishes proposed rules to expand work authorization to H-4 spouses and others

Today, the Department of Homeland Security (DHS) announced the publication of two proposed regulations that would benefit highly-skilled foreign workers.

The first rule would extend work authorization to certain spouses of H-1B nonimmigrant workers. The second rule would relax restrictions on employment authorization for other categories of highly-skilled nonimmigrants.

“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,” said U.S. Secretary of Commerce Penny Pritzker in a press release.

DHS proposed a similar rule last year to expand work authorization for a limited category of H-4 dependent spouses, and the White House recently stated its support for such a rule.

The proposed rule for H-4 visa holders would amend regulations to allow some H-4 dependent spouses to request work authorization, as long as the H-1B worker has already started the process of applying for a green card. Under existing regulations, H-4 spouses are not allowed to work. The new rule would only apply to H-4 dependent spouses where the principal H-1B holder has an approved Form I-140 petition or has been granted an extension of their stay beyond the normal 6-year period under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21).

The second proposed rule would ease the regulations on work authorization for highly-skilled professionals. The proposal would add highly-skilled professionals from Chile and Singapore (H-1B1) and Australia (E-3) to the list of individuals authorized to work based on their status with an employer. It would also clarify that H-1B1 and principal E-3 nonimmigrants are allowed to work without separately applying to DHS for work authorization. The proposed rule also gives H-1B1, E-3 and CW-1 nonimmigrant workers whose extension requests are pending a period of up to 240 days of employment authorization beyond the expiration date on their Arrival/Departure Form I-94.

Another provision of this rule would expand the type of evidentiary criteria for employment-based first preference (EB-1) outstanding professors and researchers by allowing applicants to submit evidence comparable to that of other employment-based immigrant categories.

Both Notices of Proposed Rulemaking will soon be published in the Federal Register and are open to public comment via www.regulations.gov.

BAL Analysis: While limited in their scope, the proposed rules to expand work authorization to some H-4 spouses and other highly-skilled professionals are a step in the right direction.

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