Homeland Security proposes changes to attract and retain highly skilled immigrants

February 06, 2012

On January 31, 2012, the Department of Homeland Security announced proposed administrative reforms designed to attract and retain highly skilled immigrants. See http://www.dhs.gov/ynews/fact-sheets/20120131-dhs-retain-highly-skilled-immigrants.shtm. Among the more interesting of the proposed changes are the following, as stated in the announcement:

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

Presently, 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 DHS 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, because of 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

  • 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 visa holder spouse waits for his or her adjustment of status 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 through employment after meeting a minimum period of H-1B status in the U.S. This effort will help retain talented professionals who are valued by U.S. employers and who seek to contribute to our economy

  • 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" 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.

The announcement contains some welcome developments for U.S. employers, but is short on some details. Employers should note the following with regard to two of the specific initiatives cited above.

  • OPT extension. A fair number of U.S. employers employ recent graduates who are foreign nationals on what is known as Optional Practical Training or OPT. This is a fairly easy process for employers and does not involve many if any sponsorship obligations on their part. The foreign student simply applies for and presents an Employment Authorization Document (“EAD”) which is typically valid for 12 months. However, regarding the 17-month OPT extension in the proposed reform above, as the law currently stands, not only must the foreign national’s degree be in a STEM field, their employer must also participate in the federal E-Verify program. That piece is not mentioned in the DHS announcement, and should be a consideration for any employer seeking to assist an employee in securing such an extension.
  • H-4 work authorization. With regard to work authorization for spouses of certain H-1B holders, this proposed benefit is a bit more limited than the announcement indicates, and a prior rulemaking announcement on this issue provided as follows:

Title: Allowing Certain H-4 Dependent Spouses to Apply for Employment Authorization.

Abstract: The Department of Homeland Security (DHS) proposes to amend its regulations by extending the availability of employment authorization to H-4 dependent spouses of principal H-1B nonimmigrants who have begun the process of seeking lawful permanent resident (LPR) status through employment and have extended their authorized period of admission or "stay" in the U.S. under section 104(c) or 106(a) of Public Law 106-313, also known as the American Competitiveness in the Twenty-First Century Act of 2000 (AC21). Allowing the eligible class of H-4 dependent spouses to work encourages professionals with high demand skills to remain in the country and help spur the innovation and growth of U.S. companies, and thus allow the United States to remain a world leader in high technology.

The above rule would limit this benefit to those H-4 spouses of H-1B principals who have commenced the green card process and are benefitting from extensions of H-1B status based on either: 1) starting the green card process before their 5th year in H-1B status; or 2) their inability to immediately secure a green card based on the lack of available immigrant visa numbers. At this point, it is unclear whether the reform in the recent announcement would mirror this prior rulemaking announcement. Regardless, this change would recognize that, under the current system, many spouses are not able to work in the U.S. during the sometimes fairly long transition to green card status for the H-1B principal. This transition can take years in some cases. While the spouse of the H-1B holder may independently qualify for his or her own H-1B status, employers are sometimes reluctant to sponsor H-1Bs. The proposed rule would allow certain of these spouses to apply for employment authorization that is not restricted to a particular employer sponsor, and requires no sponsorship or involvement on the employer’s part.

The DHS announcement is consistent with a White House initiative and continues the federal government’s focus on making the path and transition to permanent residence easier for highly educated and skilled foreign nationals. Given current Congressional gridlock on most immigration legislation, a number of these initiatives are moving forward as administrative rules.

Please contact Matt Raynes at our Bangor, Maine office with questions.

This alert is provided as general information, and is not a substitute for legal or other professional advice.


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