NEW YORK: If all goes according to proposed plans announced on Tuesday by
the Commerce Secretary Penny Pritzker and Deputy Secretary of Homeland
Security Alejandro Mayorkas, the Department of Homeland Security will start
issuing for the very first time Employment Authorization Cards (EAD), also
known as work permits, to some H4 visa holders, sometime this year.
The dramatic announcement was made by Pritzker in a conference call to
reporters yesterday. She outlined two main regulations proposed by the Obama
administration: to give work permits to those spouses of H-1B visa holders
who have a Green Card application being processed; and to attract highly
skilled researchers and scientists from around the world. Other regulations
being put in place include making it easier for workers from certain
countries to continue employment in the US.
The beneficiaries would be those H-1B applicants and the dependent H4 visa
holders who have an approved 1-140 application or have waited beyond the six
years of their H-1B visa period and are in line for a Green Card.
The new rules, which could come into effect as early as in the next four
months – after it is published in the Federal Register, followed by a
period of 60 days months where comments would be taken from those who are
for and against it, and then by a 30 day waiting period for the cards to be
issued, would benefit almost 100,000 H4 visa holders this year – 97,000
according to Mayorkas – and around 30,000 annually in the coming years. At
present, every year 85,000 H-1B visas are issued, including 20,000 for
students who graduate from universities in the US.
According to the Department of Homeland Security, the change to the
regulation on skilled workers would:
Update the regulations to include nonimmigrant high-skilled specialty
occupation professionals from Chile and Singapore (H-1B1) and from Australia
(E-3) in the list of classes of aliens authorized for employment incident
to status with a specific employer,
Clarify that H-1B1 and principal E-3 nonimmigrants are allowed to work
without having to separately apply to DHS for employment authorization.
Allow E-3, H-1B1 and CW-1 nonimmigrant workers up to 240 days of continued
work authorization beyond the expiration date noted on their Form I-94,
Arrival/Departure Record, while the extension request is pending.
It would affect workers in specialty occupation nonimmigrant classifications
for professionals from Chile and Singapore (H-1B1) and Australia (E-3), as
well as Commonwealth of the Northern Mariana Island (CNMI)-Only Transitional
Workers (CW-1).
Under current regulations, employers of workers in E-3, H-1B1, or CW-1
status must generally file a petition requesting the extension of the
employee’s status well before the initial authorized duration of status
expires.
Related story : DHS proposes to allow limited number of H4 visa holders work
permits
Finally, this proposal would also expand the current list of evidentiary
criteria for employment-based first preference (EB-1) outstanding professors
and researchers to allow the submission of evidence comparable to the other
forms of evidence already listed in the regulations. This proposal would
harmonize the regulations for EB-1 outstanding professors and researchers
with other employment-based immigrant categories that already allow for
submission of comparable evidence, said the DHS.
The proposed action on the H4 visa holders and other rules would be
implemented outside of the purview of the Congress. The Department of
Homeland Secretary has the power to issue the EAD cards. Since it does not
fall under Executive Action, which only the President of the United States,
can decide upon, there is bound to be less controversy politically on the
rule changes.
Johnson Myalil, an immigration attorney in the Washington, DC, area, in an
interview to The American Bazaar, said that the discretion in this case will
be taken by the Secretary of the Department of Homeland Security, and thus
avoid getting strangled in Congress, like the comprehensive immigration
reforms which was passed by the Senate, but is stalled in the US House of
Representatives.
“Republicans will not oppose it as this is for legal immigration, and
business bodies would be for it,” said Johnson.
“These individuals are American families in waiting,” Pritzker said on the
conference call. “Many tire of waiting for green cards and leave the
country to work for our competition. The fact is we have to do more to
retain and attract world-class talent to the United States, and these
regulations put us on a path to do that.”
Mayorkas said: “The proposals announced will encourage highly skilled,
specially trained individuals to remain in the United States and continue to
support US businesses and the growth of the US economy.”
In a Guest Blog post on the Department of Commerce website, Pritzker said
that “These measures are part of administrative reforms first announced in
2012, and reflect our commitment to attracting and retaining highly-skilled
immigrants, continuing our economic recovery, and encouraging job creation.”
She added: “Once enacted, this proposed rule would empower these spouses to
put their own education and skills to work for the country that they and
their families now call home. This rule change was requested in a “We the
People” petition to the White House.”
According to Pritzker, the DHS is also proposing another new rule to make it
easier for outstanding professors and researchers in other countries to
demonstrate their eligibility for the EB-1 visa, a type of green card
reserved for the world’s best and brightest.
“Just as great athletes and performers are already able to provide a range
of evidence to support their petition for an EB-1, professors and
researchers would be able to present diverse achievements such as
groundbreaking patents or prestigious scientific grants,” she said.
“These measures build on continuing Administration efforts to streamline
existing systems, eliminate inefficiency, and increase transparency, such as
by the launch of Entrepreneur Pathways, an online resource center that
gives immigrant entrepreneurs an intuitive way to navigate opportunities to
start and grow a business in the United States.”
Pritzker pointed out in the blog that immigration was responsible for one-
third of the explosive growth in patenting in past decades, and these
innovations contributed to increasing U.S. GDP by 2.4 percent. Immigrants
represent 50 percent of PhDs working in math and computer science and 57
percent of PhDs working in engineering, and one study found that 26 percent
of all U.S.-based Nobel laureates over the past 50 years were foreign born.
“Immigrants are also overrepresented in the ranks of America’s
entrepreneurs, as they are more than twice as likely as the native-born to
start a business in the United States. Immigrants started one of every four
small businesses and high-tech startups across America, and more than 40
percent of Fortune 500 companies—from GE and Ford to Google and Yahoo!—
were founded by immigrants or the children of immigrants,” she wrote.
The rule changes also acknowledges one of the key elements of the
immigration debate: the huge waiting period for Green Cards, with applicants
from India have to wait at least 11 years to get their permanent residency.
Early comments from politicians suggest a mix of jubilation and relief, with
anger at the White House taking action to keep the GOP out of the decision-
making process.
Representative Judy Chu, a Democrat who represents a California district
with many immigrant communities, praised the proposals as a good “first
step” that would protect immigrant families, reported The New York Times.
“Denying spouses the right to work is an ill-conceived policy that has gone
on for too long,” Chu said.
Senator Charles E. Grassley, Republican of Iowa, accused the Obama
administration of a “lack of compassion and understanding” for American
workers who have lost jobs because “companies prefer to hire lower-paid
workers from abroad.”
Grassley also questioned whether the president had the legal authority to
change the rules. “Where will this administration stop?” he asked. “What
other categories of individuals will be granted work authorizations?” he
told the Times.
Rep. Zoe Lofgren (D-Calif.), who represents a portion of Silicon Valley, was
quoted as saying by The Hill that she “oftentimes” meets the husband or
wife of a tech company engineer, “who is also educated but not allowed to
fully contribute his or her talents, which sometimes leads the couple to
leave the U.S. altogether.”
She also advocated immigration reforms: “I think the Administration can
continue to investigate ways to make improvements, but ultimately Congress
must pass top–to–bottom immigration reform if we are going to fix our
country’s broken immigration system.”
Silicon Valley cheered the news of the new proposed rules.
Fred Humphries, a vice president at Microsoft, one of the biggest users of H
-1B visas, said they would have “a positive economic impact,” according to
the Times.
“By sensibly improving these rules, we can help ensure that the most
talented foreign innovators conduct their break-through research right here
at home,” said Bruce Mehlman, head of the Technology CEO Council, which
represents leaders of Intel, IBM and other tech companies, reported the Hill.
“These factors cause America to lose valuable talent when a green card
candidate — many of whom were educated at American universities — to
abandon their quest for citizenship and seek employment in countries that
compete with the Untied States,” said Linda Moore, president of the TechNet
trade group, which counts Apple, Microsoft and AT&T among its members,
reported the Hill.
While the news of issuing EAD cards to H4 visa holders has come as welcome
relief to hundreds of thousands of families in the US, the Murthy Law firm,
the largest immigration practice in the US, had a word of caution for those
planning to celebrate.
In a statement, Murthy said the proposed rules would “allow H-4 spouses to
apply for employment authorization if the H1B worker and H-4 spouse are the
beneficiaries of an approved I-140 immigrant petition; or, if they have been
granted an extension of stay based upon the American Competitiveness in the
Twenty-first Century Act of 2000 (AC21) (i.e. Extension of H1B status
beyond 6 years based upon a pending green card case).”
The company adds: “… the rule change is still only a proposal, at this
point. Unless the proposed rule successfully makes it through the entire
rulemaking process, it will have no impact on the ability of H-4 spouses to
obtain work authorization. Further, at this time, there is no way to know
how long the rulemaking process may take.”
