U.S. takes steps to catch Canada and Australia in race for talent

Will Congress pass immigration reform this year?  The question remains in doubt.  But while Congress debates the issue, the Department of Homeland Security is proposing changes to immigration policy that would make the U.S. more attractive to highly-skilled foreign workers.

A few weeks ago, DHS issued a proposed regulation that would allow spouses of certain highly-skilled immigrants to obtain work authorization while the family is waiting for their green cards to be approved.

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Why is that important?  For highly-skilled immigrants, few issues are as important as the question of whether their spouse will be able to work in a new country.  And as the Managing Partner of Berry Appleman & Leiden LLP, one of the top global immigration law firms in the world, I see first-hand how a country’s policy on spousal employment can facilitate, or limit, a company’s ability to attract the best and the brightest.

Under current law, the spouse of an H-1B foreign professional obtains H-4 status which does not allow employment in the U.S.  It does not matter whether the spouse is looking to supplement the family’s income by working a few hours a week, or whether the spouse is an accomplished professional who wants to advance his or her own career.  There are no exceptions.  This policy is antiquated and unnecessarily limits the ability of hard working professionals to contribute to our economy. 

The Department of Homeland Security should be applauded for seeking to change that policy.  It will bring the U.S. much more in line with our global neighbors competing for the same talent.  For example, for over a decade Canada has allowed spouses/common-law partners of skilled foreign workers to work while they are in Canada.  Certain provinces in Canada have even developed pilot programs to grant work permits to working-age dependent children of skilled foreign workers.

Likewise, under Australia’s Temporary Work (Skilled) subclass 457 program, eligible dependents, spouses and de facto partners in Australia are permitted to work.  This has been a feature of the Australian subclass 457 program since its creation in 1996.  In addition, on 1 July 2009, changes to the definition of a de facto partner under the relevant Australian legislation and regulatory provisions were made to recognize same-sex partners as being de-facto partners for migration purposes.  This work entitlement for the spouses and de facto partners of primary visa holders has made Australia an attractive location for highly-skilled foreign workers.

By removing this restriction under U.S. immigration law, a highly-skilled foreign professional will be able to pursue an opportunity in the U.S. knowing that doing so will not come at the expense of his or her spouse’s career.  Such a change would also help to harmonize our immigration laws which already permit employment in the U.S. for the spouses of (a) L-1 intracompany transferees, (b) E-3 Australian professionals, and (c) E-1/E-2 treaty traders/investors.

The proposed policy should be a first step in a concerted effort to help the U.S. compete against Australia, Canada and other countries in the race for highly-skilled foreign workers.  Congress and the Department of Homeland Security should take additional steps to modernize our immigration system, including raising the annual quota for H-1B visas and increasing the number of green cards so that companies can retain talented professional workers.  Only then will the U.S. truly be on a level playing field in the global economy.

Fudge serves as the managing partner of Berry Appleman & Leiden and is responsible for the administration of the firm’s operations around the world. He also is active within the American Immigration Lawyers Association (AILA).

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