DHS outlines regulatory priorities to reform H-1B program, terminate H-4 work authorization

30 Oct 18

UNITED STATES

The Department of Homeland Security published an updated regulatory agenda this month, indicating that the Trump administration will continue to pursue plans to reform the H-1B annual allotment process and terminate H-4 work authorization, among other regulatory priorities. Here are some of the administration’s key proposals on employment-based immigration:

  • Reorganization of the H-1B lottery. USCIS will soon begin taking steps to reform the H-1B lottery system, including (1) reversing the order of the two H-1B lotteries so that applicants with a U.S. master’s degree will have a greater likelihood of being selected; (2) requiring companies to “pre-register” for the H-1B lottery before they submit completed H-1B petitions; and (3) prioritizing H-1B visa number allocation based on wages, education or other criteria. The changes would have a significant impact on employers, but it is currently unclear which, if any, will be implemented before April 1, 2019. Read BAL’s alert on the changes to the H-1B lottery here.
  • Termination of H-4 work authorization. DHS said it will publish a proposed regulation in November to eliminate the eligibility of H-4 spouses of certain H-1B workers to apply for employment authorization documents. The rule will reverse a 2015 rule that allowed some 71,000 H-4 spouses to obtain work authorization. Once the proposed regulation is published, DHS will accept comments from the public during a 60-day comment period before drafting and issuing a final regulation.
  • Revision of H-1B eligibility and wage protections. Officials plan to move forward with plans to revise the definition of “specialty occupation for H-1B eligibility to “increase focus on obtaining the best and the brightest foreign nationals via the H-1B program.” The rule would also revise the definition of employment and the employer-employee relationship and add new requirements designed to ensure that employers pay appropriate wages to H-1B workers. DHS said it intends to publish a proposal in August 2019.
  • Adjustment of status processing. DHS said it will propose a regulation to “improve the efficiency in the processing” of adjustment of status applications. In the regulatory agenda’s description, the agency states that it will propose to eliminate the concurrent filing of visa petitions and adjustment of status applications, but has not provided additional details on this proposal. Publication of a proposed rule is scheduled for September 2019.
  • B-1 and B-2 regulations. DHS plans to reform B-1 and B-2 visa regulations. The proposed changes will “clarify the criteria” for B-1 and B-2 visas, with a possible goal of limiting the business activities that are allowed while traveling on B-1 visas. DHS intends to publish a proposed rule in September 2019.
  • F-1 maximum period of stay. U.S. Immigration and Customs Enforcement will propose modifying the period of authorized stay for F-1 visa holders so that it is not based on “duration of status,” but rather provides a set period of authorized stay. ICE intends to publish a proposed rule in September 2019.
  • Public charge inadmissibility. DHS continues to accept public comments on a proposed rule to redefine “public charge” ground of inadmissibility under the Immigration and Nationality Act. The public comment period closes Dec. 10.
  • USCIS fee schedule. USCIS intends to publish a new fee schedule in February.

BAL Analysis: Most of the proposals in the regulatory agenda were already under consideration, though in many cases publication timelines have changed.

Regulatory changes do not take effect immediately—it usually takes a minimum of three months after a proposed regulation is issued before a final rule is published. When an agency publishes a proposed rule, members of the public are given the opportunity to submit formal comments to the government. The government agency is then required to review and consider these comments in drafting a final regulation. Typically, a regulation does not become effective immediately and has a 30-day delayed effective date.

Employers are encouraged to work with BAL to plan for possible changes, as well as to participate in the public comment period to help influence the direction of any new regulations. BAL will continue to provide clients with information on these and other regulatory and policy changes as it becomes available.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@balglobal.com.

Copyright © 2018 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@balglobal.com.