DHS proposes new rules for professionals and their family

Last week the U.S. Department of Homeland Security (“DHS”) announced a proposed rule to attract high-skilled foreign workers by allowing spouses of certain H-1B holders to also be eligible to work in the US.  The rule, if enacted, will only help H-4 dependent spouses of H-1B 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 United States 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 H-1B workers seeking lawful permanent residence to work and remain in the United States beyond the six-year limit.

Other H-4 spouses and H-4 children would not be authorized to work.

In addition, the DHS proposes an unrelated change for certain professional visa holders that removes some obstacles to their remaining in the United States.   If passed, this new rule would:

• Update the regulations to include nonimmigrant high-skilled specialty occupation professionals from Chile and Singapore (H-1B1) and from Australia (E-3) in the list of classes of aliens authorized for employment incident to status with a specific employer,
• Clarify that H-1B1 and principal E-3 nonimmigrants are allowed to work without having to separately apply to DHS for employment authorization.
• Allow E-3, H-1B1 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 the extension request is pending.

For further information, see the DHS press release.