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DHS (Department of Homeland Security) Proposals to Attract, Retain Highly Skilled Immigrants

The Department of Homeland Security (DHS) has announced the publication of two proposed rules, one to extend employment authorization to spouses of certain H-1B workers and the other to enhance opportunities for certain groups of highly skilled workers by removing obstacles to their remaining in the United States.

Under existing regulations, DHS does not extend employment authorization to H-4 dependents of H-1B nonimmigrant workers. The change proposed by DHS would allow H-4 dependent spouses of certain H-1B workers to request employment authorization, as long as the H-1B worker has already started the process of seeking lawful permanent residence through employment.

The second proposed change 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; allow E-3, H-1B1 and CW-1 (Commonwealth of the Northern Mariana Islands) nonimmigrant workers up to 240 days of continued work authorization beyond their current expiration while a timely filed extension request is pending; and expand the current list of evidentiary criteria for employment-based first preference (EB-1) to outstanding professors and researchers.

L-1 Site Visit Program

The Office of Fraud Detection and National Security (FDNS) of USCIS has announced the implementation of its L-1 site inspection program. The program is designed to complement DHS's existing anti-fraud efforts. FDNS will begin with L-1A managers and executives with extensions of stay approved by USCIS and eventually add L-1B employees, also with USCIS-approved extensions. FDNS will not be reviewing L-1s based on blanket petitions.

H-1B Cap Update

USCIS has announced that it received enough H-1B petitions to reach the statutory cap for fiscal year 2015, beginning on October 1, 2014. On April 10, 2014, USCIS announced that it had received 172,500 petitions and that it had completed its random computer selection process. Petitions that were not selected in the lottery (more than half) are being returned with the filing fees. 

BALCA on 'Infeasibility to Train'

In a decision favorable to employers, the Board of Alien Labor Certification Appeals (BALCA) has found that where the employee gained the required experience while working for the employer, the employer's detailed statement sufficiently documented that it was no longer feasible to train a new worker for the position. Therefore, BALCA overturned the certifying officer's denial of the PERM labor certification.

Revised Medical Exam Policy

On May 30, 2014, USCIS announced that effective June 1, 2014, adjustment-of-status applicants will no longer be required to file Form I-693, Report of Medical Examination, as initial evidence with an application. Form I-693 must still be submitted within one year of completion and signature by the civil surgeon and will be valid for one year after submission to USCIS. USCIS said it will address questions and provide guidance on June 12, 2014.

Jackson Lewis P.C. © 2020National Law Review, Volume IV, Number 161


About this Author

Sean G. Hanagan, Jackson Lewis, business immigration lawyer, employment eligibility verification attorney

Sean G. Hanagan is a Principal in the White Plains, New York, office of Jackson Lewis P.C.

Working with human resources professionals and in-house counsel, he helps employers develop business solutions and policies for the hire and movement of international staff. Mr. Hanagan advises on I-9 employment eligibility verification, E-Verify and social security issues, and on best practices to avoid hiring-related discrimination. He defends companies subject to government audits and investigations, and guides employers through...

Minnie Fu, Jackson Lewis, Immigration Litigation Lawyer, Employment VISA Applications attorney

Minnie Fu is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. Her practice focuses on assisting employers in obtaining employment-related visas and advising employers on compliance with U.S. immigration laws and regulations.

Ms. Fu has twenty years of experience in employment-based immigration matters, including nonimmigrant and immigrant visa matters, developing corporate immigration policies and procedures for best practices, and strategic corporate planning for international personnel employment by evaluating the impact of mergers, acquisitions, and reorganizations on corporate compliance with U.S. immigration law.

Jackson Lewis Law Firm, Immigration Attorney, Harry J. Joe

Harry Joe is a Shareholder in the Dallas, Texas office of Jackson Lewis P.C. and is head of the Immigration Group in Texas.

David Jones, Shareholder, Collegiate and Professional Sports, Jackson Lewis,

David S. Jones is a Shareholder in the firm’s Memphis office while maintaining a practice in the Las Vegas office of Jackson Lewis P.C. He has practiced law exclusively in the area of immigration and related employment matters for nearly fifteen years. He represents clients in complex matters relating to both immigration benefits and enforcement and in proceedings before the Department of Homeland Security, the Department of Labor, the Department of Justice and the Department of State, as well as in matters related to citizenship status discrimination...

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