DHS Regulatory Suggestions for H-4s to Work
Many MurthyDotCom and MurthyBulletin readers have inquired as
to whether the laws have changed to allow individuals in H-4 dependent
status to obtain work authorization. At the time of this writing, there has been no
favorable change to allow H-4 dependents to work. The renewed interest in
this long-debated topic, however, is the result of recent suggested regulatory changes
put forth by the U.S. Department of Homeland Security (DHS), summarized here
for our readers.
Source of Suggested Changes
On January 31, 2012, the DHS issued a
factsheet, which outlined proposed regulatory changes to attract and
retain highly-skilled immigrants. These proposed changes are consistent with
the Obama Administration's commitment to "fix our broken immigration
system." They present options to address discrete problems in the system, in
the absence of the much-needed overall immigration reform.
Included in the list of proposed changes are more flexible eligibility
criteria for employment authorization for students in F-1 status, as well as
for certain H-4 spouses of H1B workers, and other specified workers. The
proposed changes also would broaden rules governing outstanding professors
and researches, and entrepreneurs. A short overview of the plans identified
in the
DHS factsheet follow.
DHS Interpretation of Regulations, no
Legislative Change
At issue is a change in the interpretation of DHS regulations, rather than
creation of new legislation or laws. The important difference is that laws
must be passed by the U.S. Congress and signed by the President. This is a
complex process, which is
highly politically charged. Regulations can also be difficult to modify,
but the process primarily is contained within the agency involved in implementing the laws, in
this case the Department of Homeland Security (DHS). Regulations interpret
and implement existing laws and involve many specific details not set forth
in the law. The decisions as to the regulatory changes are within the
control of the DHS, as long as they are acting within the boundaries of
existing laws.
Eligibility for H-4 Spouses of Certain H1Bs to
Work: Gray Areas
Among the proposed regulatory changes is one that could provide a
significant benefit for some H-4 nonimmigrants. The H-4 category is for
spouses and children of H1B workers. At this time, individuals in H-4 status
are not work authorized, meaning that they are not allowed to engage in
employment. This rule has been the center of much heated debate and
discussion for many years. The spouses of H1B skilled workers are often well
educated and possess high levels of professional skills and experience, as
well. These individuals have been struggling with their inability to work
while living with the principal H1B spouse in the United States. Recognizing
the benefit to the U.S. economy that will result from a relaxation of these
rigid restrictions, DHS proposes to amend the current regulation governing
this matter.
The DHS summary of the proposed regulation indicates that it will make it
possible for H-4 dependent spouses to seek employment authorization "while
their visa holder spouse waits for his or her adjustment-of-status
application to be adjudicated." It states that employment authorization will
be conditioned on the H1B spouse having started the employment-based,
permanent resident ("green card") process and having been in the United
States for a "minimum period of H1B status."
Thus, it is not entirely clear at what point the "minimum period" will be
reached to allow H-4 nonimmigrants to apply for employment authorization.
There also seems to be some internal contradiction in the summary as to
whether it is enough to have begun the green card process, or whether it is
necessary to have filed the application for adjustment of status (I-485).
These details will have to be examined closely in any further DHS
announcements or the final proposed regulation.
Expansion of STEM OPT Eligibility
Currently, qualified F-1 students can obtain permission to work for
12-months in Optional Practical Training (OPT) following completion of their
studies. Additionally, some F-1 students meet the eligibility criteria for a
17-month extension of OPT. This extension is limited to students in F-1
status whose most-recently completed degree was in one of the fields
designated as science, technology, engineering, or mathematics (STEM).
The proposed change to the current regulation allows each student with a
prior STEM degree to apply for the 17-month OPT extension, even if the STEM
degree is not her/his most recent degree. A typical example of this might be
a person with a STEM bachelor's degree followed by an MBA. The DHS states that
it will continue to review and update the list of acceptable STEM degrees.
Academic Study for F-2 Dependents
The proposed legislation will allow spouses of F-1 students to enroll in
part-time academic classes in contrast to the current regulation that only
allows such spouses to enroll in part-time vocational or recreational
classes. Other spouses and children in dependent nonimmigrant
statuses are able to enroll in school without such restrictions.
Flexibility for Outstanding Professors /
Researchers
The
DHS also proposes a regulatory change affecting the EB1B preference category
for outstanding professors and researchers (OPR).
The proposed change would expand the types of evidence that can be submitted
in support of the OPR immigrant petition and the allowable evidence
list to include a catch-all category permitting consideration of
any type of "'comparable evidence' to that contained in the specifically
articulated regulatory list." This makes the potentially acceptable
evidence of accomplishments and recognition less restrictive than under
current requirements.
DHS Entrepreneurs-in-Residence Initiative
The
DHS has announced the launch of an entrepreneurs-in-residence initiative on
February 22, 2012 in Silicon Valley, CA. This is to solicit expert advice on
the DHS's earlier initiative designed to promote job creation by start-up
companies founded by foreign entrepreneurs. This was shared with
MurthyDotCom and MurthyBulletin readers in,
USCIS Announcement to
Encourage Entrepreneurs to the U.S. (04.Aug.2011).
Conclusion
We applaud these efforts toward flexibility and real-world considerations in
the proposed changes to the existing regulations outlined by the DHS. If
implemented, the improvements will provide greater benefits to many
skilled workers and their families, while also benefiting the U.S. economy.
Since the DHS indicated no timeline, interested individuals are cautioned
not to rely on proposed changes by taking any specific action at this time.
This article originally appeared in Murthy Bulletin on www.Murthy.com Reprinted with permission
About The Author
Attorneys from the Murthy Law Firm. Sheela Murthy is the founder of the Murthy Law Firm, which consists of approximately 85 full time attorneys, paralegals, and support staff, who provide excellent service in the area of U.S. Immigration Law to clients worldwide. The Murthy Law Firm handles cases ranging from Fortune 500 companies, mid-sized and small companies, to individuals who are undergoing the U.S. immigration process. A graduate of Harvard Law School with an LL.M degree and herself an immigrant, Attorney Murthy understands the complexities of immigration and empathizes with those faced with its challenges.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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