Update on USCIS policy agenda

27 Apr 18

UNITED STATES

U.S. Citizenship and Immigration Services has provided an update on its policy agenda regarding regulatory reforms to the H-1B visa program as well as other changes affecting foreign nationals seeking to work in the United States. The updated list of agenda items was provided in a letter dated April 4 from the agency’s director, L. Francis Cissna, to Sen. Chuck Grassley, R-Iowa, who chairs the Senate Judiciary Committee.

Key regulatory initiatives:

  • USCIS will propose two regulations that will impact the H-1B visa program. One regulation will establish an electronic registration system for H-1B cap-subject petitions that is intended to better manage the intake and lottery selection process. The other regulation will revise the definition of “specialty occupation” and revise the definition of employment and employer-employee relationship “to better protect U.S. workers and wages.”
  • In addition to those regulations, DHS will propose new requirements designed to ensure that employers pay appropriate wages to H-1B visa holders.
  • USCIS will propose a regulation to remove the eligibility of H-4 spouses of certain H-1B workers who are in line for a green card to apply for employment authorization documents. The rule will reverse a 2015 Obama-era rule that allowed some 71,000 H-4 spouses to obtain work authorization.
  • The agency is drafting a proposed regulation to withdraw the International Entrepreneur Rule, another Obama-era rule that allows qualifying foreign nationals to apply for parole to remain in the U.S. to develop or start a business.

Background: In addition to listing the agency’s anticipated regulations, the letter recounts several recent policy memos that tighten skilled-worker visa programs, including clarification of requirements for H-1B workers placed at third-party sites, a more targeted approach to H-1B employer site visits, expanded administrative site visits to L-1B petitions, raising the burden of proof in H-1B extension petitions, and clarifying the definition of TN economists. The initiatives are intended to comply with President Trump’s “Buy American, Hire American” Executive Order, which directs federal agencies to issue rules, policies and operational changes to tighten visa eligibility criteria, protect U.S. workers and prevent fraud and abuse.

BAL Analysis: The letter reiterates the agency’s regulatory and policy agenda as previously stated in its semiannual agenda released in December. The regulatory changes will not take place immediately—it usually takes a minimum of three months after a proposed regulation is issued before a final rule is published. Under the rulemaking process, a proposed rule is released and a notice and comment period, normally lasting 30 days, gives members of the public a chance to respond with comments. During this period, employers and other immigration stakeholders will have the opportunity to submit formal comments to the government. Thereafter, the agency must review the comments, make any changes to the regulation, and publish a final rule in the Federal Register. Typically, a regulation is not effective immediately and has a 30-day delayed effective date.

Employers are encouraged to work with BAL to plan for these 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.