DHS plans sweeping changes to high-skilled immigration programs in 2018

14 Dec 17

UNITED STATES

The Department of Homeland Security’s semi-annual regulatory agenda indicates the Trump administration will pursue plans to terminate work authorization for spouses of H-1B holders, overhaul the H-1B annual allotment process, revise H-1B eligibility and wage protections, and update the F-1 Optional Practical Training (OPT) program.

Notably, DHS signaled that the changes to the H-1B and F-1 OPT programs will be accomplished through notice and comment rulemaking in the federal register. That means the policy changes will not become effective immediately and companies and other affected parties will have the opportunity to submit comments to the government.

Key points:

  • Termination of H-4 work authorization. DHS plans to remove “certain H-4 spouses of H-1B nonimmigrants as a class of aliens eligible for employment authorization.” This move is not a surprise after the Trump administration indicated it was preparing to revise or overturn the 2015 rule in question, but it will potentially prevent thousands of H-4 spouses from working in the United States. The 2015 regulation has not been modified or rescinded yet, and remains in effect at this time, but the DHS regulatory agenda provided the clearest indication yet that the rule will be scrapped.
  • Reorganization of the H-1B lottery. DHS plans to propose a pre-registration system for cap-subject H-1B visa applicants. The agency indicated 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. Few additional details are available at this point, but DHS said it would implement the pre-registration system first for H-1B visas before extending it to other numerically capped nonimmigrant visas as needed.
  • Revision of H-1B eligibility and wage protections. DHS will propose a rule to revise the definition of “specialty occupation” for H-1B eligibility to “increase the focus on truly obtaining the best and brightest.” 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. The rule is likely to continue the administration’s focus on H-1B wages, entry-level jobs, as well as “H-1B dependent” companies that rely on large numbers of H-1B workers and companies that place H-1B workers at offsite employers. The rule could also impose wage thresholds that employers must meet for H-1B employees.
  • Revision of the OPT program. Immigration and Customs Enforcement will issue a proposed rule that comprehensively reforms the optional practical training (OPT) program for foreign students. The rule aims to reduce fraud and abuse and improve the protection of U.S. workers who may be negatively impacted by employment of foreign students. The Trump administration has already 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.

BAL Analysis: The DHS regulatory agenda seeks to roll back a number of remaining Obama-era immigration regulations and further tighten non-immigrant categories, in particular H-4, H-1B and F-1 student OPT. Because the notice and comment rulemaking process often takes six months or longer, it is not clear that the administration will have time to make substantial changes to the H-1B filing or allocation process before the FY2019 cap season begins on April 1, 2018. But because adjudication of those petitions will take months, companies could see new eligibility standards applied to next year’s H-1B cap filings. 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 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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