A historic first for the US immigration system.
By Sujeet Rajan
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 â€“ 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 â€“ 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 employeeâ€™s status well before the initial authorized duration of status expires.
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.Â 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.
â€œRepublicans will not oppose it as this is for legal immigration, and business bodies would be for it,â€ said Johnson.
â€œThese individuals are American families in waiting,â€ Pritzker said on the conference call. â€œMany 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.â€
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 â€œThese 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.â€
She added: â€œOnce 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.Â This rule change was requested in a â€œWe the Peopleâ€ petition to the White House.â€
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 worldâ€™s best and brightest.
â€œJust 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,â€ she said.
â€œThese 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.â€
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.
â€œImmigrants are also overrepresented in the ranks of Americaâ€™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 companiesâ€”from GE and Ford to Google and Yahoo!â€”were founded by immigrants or the children of immigrants,â€ 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 â€œfirst stepâ€ that would protect immigrant families, reported The New York Times.
â€œDenying spouses the right to work is an ill-conceived policy that has gone on for too long,â€ Chu said.
Senator Charles E. Grassley, Republican of Iowa, accused the Obama administration of a â€œlack of compassion and understandingâ€ for American workers who have lost jobs because â€œcompanies prefer to hire lower-paid workers from abroad.â€
Grassley also questioned whether the president had the legal authority to change the rules. â€œWhere will this administration stop?â€ he asked. â€œWhat other categories of individuals will be granted work authorizations?â€ 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 â€œoftentimesâ€ meets the husband or wife of a tech company engineer, â€œwho is also educated but not allowed to fully contribute his or her talents, which sometimes leads the couple to leave the U.S. altogether.â€
She also advocated immigration reforms: Â â€œI think the Administration can continue to investigate ways to make improvements, but ultimately Congress must pass topâ€“toâ€“bottom immigration reform if we are going to fix our countryâ€™s broken immigration system.â€
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 â€œa positive economic impact,â€ according to the Times.
â€œBy sensibly improving these rules, we can help ensure that the most talented foreign innovators conduct their break-through research right here at home,â€ said Bruce Mehlman, head of the Technology CEO Council, which represents leaders of Intel, IBM and other tech companies, reported the Hill.
â€œThese factors cause America to lose valuable talent when a green card candidate â€” many of whom were educated at American universities â€” to abandon their quest for citizenship and seek employment in countries that compete with the Untied States,â€ 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 â€œallow 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).â€
The company adds: â€œâ€¦ 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.â€