USCIS Publishes Proposed Rules Expanding Eligibility for Employment Authorization | Practical Law

USCIS Publishes Proposed Rules Expanding Eligibility for Employment Authorization | Practical Law

The US Citizenship and Immigration Services (USCIS) published two proposed rules to expand the employment authorization eligibility requirements for certain H-4 dependent spouses and to update regulations to increase opportunities for H-1B1, CW-1, E-3 and EB-1 workers to remain in the US. Comments are due by July 11, 2014.

USCIS Publishes Proposed Rules Expanding Eligibility for Employment Authorization

Practical Law Legal Update 4-567-8692 (Approx. 4 pages)

USCIS Publishes Proposed Rules Expanding Eligibility for Employment Authorization

by Practical Law Labor & Employment
Published on 13 May 2014 • USA (National/Federal)
The US Citizenship and Immigration Services (USCIS) published two proposed rules to expand the employment authorization eligibility requirements for certain H-4 dependent spouses and to update regulations to increase opportunities for H-1B1, CW-1, E-3 and EB-1 workers to remain in the US. Comments are due by July 11, 2014.
On May 12, 2014, the US Citizenship and Immigration Services (USCIS) published two proposed rules to implement reforms to attract and retain highly-skilled immigrants. The first proposed rule extends employment authorization availability to certain H-4 dependent spouses and the second updates regulations to increase opportunities for H-1B1, CW-1, E-3 and EB-1 workers to remain in the US. The rules follow a White House announcement that they were imminent (see Legal Update, White House Announces New Programs to Encourage Foreign Entrepreneurs).
The agency's first proposed rule authorizes employment for certain H-4 dependent spouses of principal H-1B nonimmigrants, if the H-1B nonimmigrant spouse:
  • Is the beneficiary of an approved Immigrant Petition for Alien Worker (Form I-140).
  • Has been granted an extension of his authorized period of admission under the American Competitiveness in the Twenty-First Century Act of 2000 (American Competitiveness in the Twenty-first Century Act of 2000, Pub. L. No. 106-313, 114 Stat. 1251, § 105 (Oct. 17, 2000)).
The new employment authorization will not be available to:
  • H-4 spouses of principal workers in H-2A, H-2B or H-3 status.
  • Children of qualifying H-1B workers.
This rule would increase the likelihood that H-1B workers will remain in the US while they are awaiting lawful permanent residence. For many H-1B workers sponsored by their employers for a green card, the process may take several years. Unless the worker's spouse has independent work status, the fact that the spouse cannot work creates an economic and emotional burden on the H-1B worker. That burden can lead to business loss for the employer sponsoring the H-1B worker. In addition, many spouses are highly-skilled workers. The proposed rule therefore aims to both add and retain highly-skilled workers in the US and ease the economic burden on H-1B workers and their families.
The agency's second proposed rule, to enhance opportunities for H-1B1, CW-1, E-3 and EB-1 workers, would:
  • Add nonimmigrant highly-skilled specialty occupation professionals from Chile (H-1B1), Singapore (H-1B1) and Australia (E-3) to the list of nonimmigrant classes authorized for employment incident to status with a specific employer. This change brings the regulations into conformity with practice.
  • Clarify that H-1B1 and principal E-3 nonimmigrants are permitted to work without a separate approval for work authorization from the USCIS.
  • Automatically extend employment authorization to E-3, H-1B1 and Northern Mariana Islands-Only Transitional Worker (CW-1) nonimmigrants with continued employment with the same employer, provided the employer has timely filed for an extension of the nonimmigrant's stay.
  • Update the regulations on the filing procedures for extensions of stay and change of status requests to include the principal E-3, H-1B1 and CW-1 nonimmigrant classifications to conform with the regulations governing other, similarly situated nonimmigrant classifications.
  • Expand the list of evidentiary criteria for EB-1 outstanding professors and researchers to allow for the submission of other comparable evidence and thereby make it uniform with the lists of other employment-based immigrant categories.
The proposed rule is meant to remove unnecessary hurdles for these highly-skilled workers and CW-1 transitional workers, and to ensure that they are not at a disadvantage compared to similarly situated workers in other visa classifications.
Parties are invited to submit written comments on the proposed rules at the federal eRulemaking website. Comments on both rules must be submitted by July 11, 2014.