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DHS Proposes Benefits Reforms to Help Retain Highly-Skilled Foreign Nationals
January 31, 2012
The Department of Homeland Security has announced plans to expand an optional practical training (OPT) extension for F-1 students with U.S. science, technology, engineering or math (STEM) degrees and grant work authorization to certain H-1B spouses, among other initiatives intended retain highly-skilled foreign nationals and attract new investment to the United States.

DHS announced the slate of proposed reforms today, in conjunction with the White House’s release of the Startup America legislative agenda, an array of proposals aimed at reducing burdens – including immigration burdens – that prevent small and emerging companies from raising capital and fostering growth. The DHS proposals will likely not take effect until they proceed through the federal regulatory approval process, which could take several months or more.

Expanded STEM OPT Extension

DHS plans to make a 17-month extension of OPT available not just to F-1 foreign students whose most recent degree is in a STEM field, but also to those who have earned a U.S. STEM degree in the past. For example, a foreign national whose most recent U.S. degree is a master’s in business administration could be eligible for a 17-month OPT extension based on a previously-earned U.S. bachelor’s degree in mathematics. Under current law, F-1 students are eligible for the 17-month extension only if their most recent degree, on which their OPT is based, is in a designated STEM field.

DHS also indicated that it plans to review the list of degrees designated for STEM OPT and may consider adding new and emerging fields.

Work Authorization for Spouses of Certain H-1Bs

H-4 nonimmigrants whose H-1B spouses have started the employment-based permanent residence process could be eligible to apply for work authorization under DHS’s plan, provided that the principal spouse has been in the United States as an H-1B for a minimum period of time.

Though the agency has not provided specific details, the proposed change may mean that H-4s could become eligible for work authorization after a labor certification or immigrant worker petition has been filed on behalf of the H-1B spouse. Currently, an H-4 spouse can apply for work authorization only if he or she is the beneficiary of a pending application for adjustment of status – the last stage of the permanent residence process.

Continued Work Authorization for E-3s and H-1B1s with Pending Extensions

DHS plans to authorize E-3 and H-1B1 nonimmigrants to work for their current employer for up to 240 days past the expiration of their period of stay, as long as a timely application to extend status has been filed on their behalf. Under current regulations, a 240-day continuation of work authorization is available only to H-1B and L-1 nonimmigrants with timely extensions.

Broadened Acceptable Evidence for Outstanding Professors and Researchers

DHS plans to accept more types of evidence to establish that outstanding professors and researchers sponsored for permanent residence in the EB-1(b) subcategory are internationally recognized as outstanding in their field.

According to current rules, employers petitioning on behalf of outstanding professors and researchers are limited to a specific list of acceptable evidence. Under the proposed change, the agency would accept alternate evidence comparable to that specified in the regulation. The agency already accepts such comparable evidence for petitions in other EB-1 subcategories.

Entrepreneurs in Residence Program to Launch February 22

Lastly, on February 22, USCIS will hold a meeting with business, academic and government leaders to launch the previously-announced Entrepreneurs in Residence Program. Entrepreneurs in Residence is an initiative that seeks to use private-sector experts to advise the agency on spurring immigrant entrepreneurship and related business issues. In December 2011, USCIS invited business leaders to apply to serve as advisors in the program.

The agency has not yet made clear how it intends to use the residency program, but is expected to provide details at the February launch. In past communications, USCIS has suggested that resident experts would work with agency employees to streamline procedures and create best practices for adjudication of the nonimmigrant benefits applications most commonly used by foreign entrepreneurs.

What the New Proposals Mean for Employers

The impact of the benefits proposals cannot be fully gauged until DHS provides concrete implementation details. Expansion of the F-1 STEM OPT extension could provide a meaningful postgraduate employment option for the many foreign nationals with a STEM baccalaureate education and graduate professional degree. The proposal to grant employment authorization to certain H-4 nonimmigrants would ease – but not eliminate – the general prohibition against spousal employment in the H category.

Perhaps the greatest area of unpredictability is the expansion of acceptable evidence for EB-1 outstanding professor/researcher cases. In recent months, USCIS has heightened eligibility standards for many EB-1 cases, resulting in increased requests for evidence and denials. It is not yet known whether acceptance of “comparable evidence” in EB-1(b) cases would improve adjudications.

Fragomen will closely monitor implementation of the proposals announced today and will issue updates as developments occur.