Positive Developments for Highly Skilled Immigrants

By Attorneys Robert L. Reeves and Joseph I. Elias

We are pleased to report that the Department of Homeland Security (DHS) has been directed by President Obama to make improvements to the existing immigration system in order to attract and retain highly-skilled immigrants.
The Obama administration recognizes that immigrants are critical to continuing our economic recovery and encouraging job creation in the United States. Shortly after his state of the union address, President Obama explained, “In recent years, a full 25 percent of high-tech startups in the United States were founded by immigrants, leading to more than 200,000 jobs in America.”

The President authorized several initiatives to make the United States more attractive to highly skilled foreign students and workers. The first initiative will be to expand eligibility for the 17-month extension of optional practical training (OPT) for F-1 international students to include students with a prior degree in Science, Technology, Engineering and Mathematics (S TEM).

Under the current system, the 17-months extension of OPT is only available to F-1 students if the most recent degree they were conferred was in a STEM field. The proposed change expands eligibility to include students with a STEM degree that is not the most recent degree student received. DHS will also review emerging fields for inclusion in the list of eligible STEM degree programs.

The second initiative would allow spouses of F-1 students to enroll in academic classes on a part-time basis while his or her spouse is pursuing full-time studies. Under current regulations, spouses may only take part-time vocational or recreational classes. This will greatly help those spouses who cannot commit to a full-time student workload because of family or other demands, yet, wish to pursue additional education.

Another initiative would also assist the H-4 spouses of H-1B holders. DHS will propose a change to current regulations to allow certain spouses of H-1B visa holders to legally work while they wait for their adjustment of status applications to be adjudicated. This means H-4 spouses of the principal H1B visa holder who have begun the process of seeking permanent resident status may be granted employment authorization. Presently, H-4 spouses are eligible to apply for employment authorization as adjustment of status applicants. But, if they work with this employment authorization, they lose H-4 status.

This is undesirable because, if the adjustment of status application is ever denied, they no longer have an underlying legal status to allow them to remain in the U.S. while either challenging the denial or seeking a new basis to adjust status. This places H-4 spouses in a Catch-22 situation. Should I work now, or should I play it safe and wait several years until granted permanent resident status before I work?

One of the most interesting initiatives is the Entrepreneurs in Residence Initiative. This will be conducted through a series of summits focusing on ensuring immigration pathways perform entrepreneurs a clear and consistent, and better reflect today’s business realities. This initiative calls for the creation of an entrepreneurs in residence tactical team comprised of business experts to work alongside United States Citizenship and Immigration Services (USCIS) staff in-house.

This promises to allow USCIS staff who are removed from current business practices and realities to better understand the environment for which they are adjudicating cases on. This should lead to more approvals of cutting edge business petitions.

It is very encouraging to see the Obama administration recognizes the significant contributions immigrants make to the United States. We hope the Department of Homeland Security will move quickly to effectuate these initiatives and we look forward to informing the public as these and other initiatives are put into place.