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DHS Proposes New Rules for Certain Employment-Based Nonimmigrants

Department of Homeland Security announced this week two new rules soon to be published in the Federal Register which would (1) amend existing regulations by permitting H-4 dependents of principal H-1B workers to request employment authorization from USCIS and (2) authorize employment incident to status for workers in the H-1B1 (Singapore and Chile), E-3 (Australia), and CW-1 (Commonwealth of the Northern Mariana Island (CNMI)-Only Transitional Workers) nonimmigrant categories.

The first proposed rule is most notable. H-4 dependent visa holders derive their nonimmigrant status from the lawful status of H-1B specialty workers, i.e. those such as engineers, scientists or computer programmers holding a Bachelor's degree or higher and working in an occupation requiring the theoretical and practical application of a body of highly specialized knowledge. H-4 dependents are permitted to accompany the H-1B worker to and remain in the United States but cannot accept employment unless they independently change their status to a nonimmigrant visa category that carries work authorization.

Touted by the Obama Administration as a way of assuring the United States can attract the best and brightest from around the world and of supporting American businesses, the proposed rule making would benefit those dependents of H-1B workers whose H-1B nonimmigrant status has been extended beyond the six-year legal limit under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) or whose companies have secured approval of an I-140 immigrant visa petition on their behalf.

The proposed rule would not address employment eligibility for the majority of H-4 dependents whose H-1B family member was not already well on his or her way on the path toward being sponsored for permanent residence through employment. It is that population that could most use having the option to work while accompanying their family member here in the United States. In fact, those H-4 dependents whose job skills are left to rust may take little solace from being able to apply for an Employment Authorization Document (EAD) not sooner than six years into the long journey to permanent residence instead of at the beginning when the H-4 visa holder could most contribute to the U.S. economy and develop as a professional.

The DHS announcement may seem like a nice gesture to those H-1B workers with dependents facing long waiting times for a green card, but I doubt it will make much difference in convincing highly skilled workers considering the United States to make their home here. As I see it, the proposed rule making is simply biding time until real immigration reform happens which addresses the competitive needs of U.S. businesses in the twenty-first century.

Timothy D. Widman is a San Jose Immigration Attorney and the owner of the Law Office of Timothy D. Widman.

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