The Department of Homeland Security Announces Reforms to Attract Highly Skilled Immigrants

By: Justin G. Fok, Esq.

On January 31, 2012, the Department of Homeland Security (“DHS”) announced several new initiatives designed to attract and retain highly skilled immigrants to help improve the competitiveness of U.S. companies and to create jobs.  While the exact details of these reforms have not been released yet, several of these initiatives would be of particular interest to our readers: 

Expanding Eligibility for the 17-Month Extension of OPT

Currently, an F-1 student who earns a degree in a program of study classified as STEM (science, technology, engineering, and math fields), can obtain a 17-month extension of OPT as part of their F-1 status.  Unfortunately, this eligibility for a 17-month extension can only be derived from the student’s most recently earned degree.  The new initiative proposed by the DHS would expand this 17 month extension to students with a STEM degree that is not the most recent degree the student has earned.  In other words, if a student received a bachelor's degree in Computer Engineering but then went on and earned a master’s in English, the student would still be eligible for the 17-month extension based on the bachelor’s in Computer Engineering under this new initiative. 

Allow Spouses of F-1 Students to Study Part-Time

Under current regulations an F-1 spouse can only take part-time vocational or recreational classes, actual enrollment in an academic course of study is prohibited.  This proposed regulatory reform would allow spouses of F-1 students to enroll in academic classes on a part-time basis while the F-1 holder pursues full-time studies. 

Allow EB1B Outstanding Professors and Researchers to Present Broader Evidence

A beneficiary for an EB1A "extraordinary ability" petition is able to present "comparable evidence" if there is evidence for his or her case that does not fit in the regulatory list of allowable evidence.  This evidentiary flexibility is not allowed for EB1B beneficiaries.  The new DHS regulations would allow professors and researchers petitioning under EB1B to also present "comparable evidence" beyond the regulatory list, increasing the types of evidence that employers can submit to demonstrate that a professor or researcher is one of the very best in the field. 

 Provide Work Authorization for Spouses of H1B Holders

This proposed regulatory change would allow H-4 dependent spouses to legally work in the United States if the principal H1B visa holder has begun the process of seeking lawful permanent resident status through employment after being in the U.S. for a minimum period of years under H1B.  Thus, rather than waiting until the I-485 stage to apply for an Employment Authorization Document, an H-4 spouse could begin legal employment in the U.S. once the green card process has begun.  Presumably, this would mean that the H-4 spouse can legally work in the U.S. once the principal H1B holder has filed a PERM/Labor Certification for an employer-sponsored petition, or an I-140 in the case of a self-sponsored petition such as NIW or EB1A.  While the exact procedural details of this proposal have not been released yet, any change that would allow an H-4 spouse to legally work in the U.S. earlier would be a welcome benefit. 

  Conclusion

While the above initiatives are welcome improvements to the current regulatory framework, the DHS announcement did not confirm any dates of when these changes would take place.  Fortunately, the proposed changes are regulatory in nature - they do not require a vote from Congress or any changes to existing statutory law in order to be enacted.  Because changes in regulations can be made relatively quickly under current notice and publication rules, and because of President Obama's deep commitment to enhancing America's competitiveness through immigration, USCIS may post new updates in the near future.  We will post a new article for our readers with further details as soon as these new regulations are enacted.

If you have questions or comments regarding this article, please contact Attorney Fok at: jfok@jclawoffice.com