DHS outlines regulatory priorities in semiannual agenda

25 May 18

UNITED STATES

The Department of Homeland Security’s Spring regulatory agenda released this month indicates that the Trump administration will continue to pursue plans to reform the H-1B annual allotment process, revise H-1B eligibility and wage protections, terminate H-4 work authorization, overhaul the F-1 Optional Practical Training (OPT) program and review the activities that are allowed on B-1 and B-2 visas.

The agenda reinforces the goals the administration outlined in its December regulatory agenda and in an April 4 letter from U.S. Citizenship and Immigration Services Director L. Francis Cissna, to Sen. Chuck Grassley, R-Iowa, who chairs the Senate Judiciary Committee. Here are some of the key points:

  • Reorganization of the H-1B lottery. As was previously announced, DHS plans to propose a preregistration system for cap-subject H-1B visa applicants. The agency indicated that it may modify the selection process, currently completed through an electronic lottery, so that visas would be awarded to the “most-skilled or highest-paid petition beneficiaries,” as was contemplated in Trump’s “Buy American Hire American” executive order in April 2017. DHS intends to publish a new proposed rule in July.
  • Revision of H-1B eligibility and wage protections. DHS also plans to move forward with its 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 intends to publish a proposal in January 2019.
  • Termination of H-4 work authorization. DHS said it will propose a rule in June to eliminate 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.
  • Reform of the OPT program. Immigration and Customs Enforcement will propose a rule that comprehensively reforms the OPT program for foreign students. The Trump administration previously indicated that it will limit the work opportunities available to foreign students and is likely to rescind Obama’s STEM-OPT Extension rule that expanded the extensions of OPT for foreign nationals holding U.S. degrees in STEM fields from 17 months to 24 months. ICE intends to publish a proposed rule in October.
  • 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 November.
  • USCIS fee schedule. USCIS intends to publish a new fee schedule in October.

BAL Analysis: The regulatory agenda reiterates the administration’s regulatory and policy priorities as previously outlined. 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. When an agency publishes a proposed rule, members of the public are given the opportunity to submit formal comments to the government. 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 the 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.

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