USCIS Regulations Slowly Catching Up/Catching On To Current Immigration Realities

In recent days, the Department of Homeland Security ("DHS") has published several proposed rules in the Federal Register, which, if adopted, will bring welcome and much needed regulatory changes.

Authorizing Employment Authorization for Spouses of Certain H-1B Workers

On May 12, 2014 DHS published a proposed rule to allow the spouses of certain H-1B temporary workers the right to work in the United States. The proposal would amend current regulations to grant spouses of H-1B workers the right to apply for an Employment Authorization Document (which affords a blanket authorization to work in the US) as long as the spouse holding H-1B visa status is the beneficiary of an approved I-140 Immigrant Visa Petition or has filed for an extension of H-1B visa status on the basis of an approved I-140 petition (pursuant to sections 106(a) and/or (b) of the American Competitiveness in the 21st Century Department of Justice Appropriations Authorization Act ("AC21").

This proposed regulatory change recognizes that the green card process can take 10 years or longer to complete for applicants from countries such as India or China, which have significant immigrant visa backlogs. Throughout nearly the entirety of this staggeringly long process, spouses on H-4 dependent visas lack authorization to work. The current regulations limit these families to being one-income families, even when the spouse on an H-4 dependent visa wants nothing more than to work and earn an income. Immigrants who hail from countries that do not have immigrant visa backlogs get through the green card process in just a few years, and their spouses do not face this lengthy prohibition on working in the US.

The proposed rule recognizes this disparity in treatment based on country of birth and if the rule is finalized and implemented, it will go a long way towards alleviating this disparity and towards leveling the economic playing field. There is no question that many H-4 spouses who gain authorization to work will jump at the chance to work in the US and will enthusiastically seek employment. Hopefully one day DHS will go further and will authorize employment authorization for all H-4 spouses. This will make the US more competitive in the quest to attract foreign talent.

Recognizing E-3 and H-1B1 Temporary Work Visa Classifications in the Regulations

DHS also published some other welcome and long overdue proposed regulatory changes in the Federal Register on May 12, 2014. The proposals...