DHS’s Fall 2018 Regulatory Agenda Provides a Glimpse of What’s to Come for Employment Based Immigration
The Department of Homeland Security (DHS) released its Fall 2018 Regulatory Agenda outlining regulations that administrative agencies plan to take action on in the near future. The Fall 2018 agenda gives us a glimpse into the expected regulatory changes for employment based immigration:
- H-1B Cap Pre-Registration Requirement: The DHS proposes to amend its regulations governing petitions filed on behalf of H-1B beneficiaries who may be counted under the “regular cap” or under the “master’s cap”. This rule proposes to establish an electronic registration program for petitions subject to numerical limitations for the H-1B visa classification. Further, the proposal may include a modified selection process, as outlined in the Buy American and Hire American Executive Order. Specifically, the Agenda states that this regulation would help increase the probability for H-1B visas to be awarded to those beneficiaries who possess a Master’s degree or higher from a U.S. institution of higher education. DHS intends to publish the proposed rule in 2018 so that it can be implemented in time for the April 2019 lottery.
- Strengthening the H-1B Nonimmigrant Visa Classification Program: The DHS will propose to (1) revise the definition of specialty occupation in order to focus on obtaining the “best and the brightest foreign nationals via the H-1B program”, (2) revise the definition of employer-employee relationship to focus on protecting U.S. workers and wages, and (3) ensure employers pay appropriate wages to H-1B workers. The Agenda states, “The purpose of these changes is to ensure that H-1B visas are awarded only to individuals who will be working in a job which meets the statutory definition of specialty occupation. In addition, these changes are intended to ensure that the H-1B program supplements the U.S. workforce and strengthens U.S. worker protections.” This proposed rule is expected in August 2019.
- Elimination of the H-4 EAD: In February 2015, the DHS published a final rule extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B visa workers seeking employment based lawful permanent resident status (green card). DHS is proposing to rescind the final rule, which would no longer allow certain H-4 spouses to be eligible for employment authorization. The Agenda states, “DHS anticipates that there would be two primary impacts that DHS can estimate and quantify: the cost-savings accruing to forgone future filings by certain H-4 dependent spouses, and labor turnover costs that employers of H-4 workers could incur when their employees’ EADs are terminated. Some U.S. workers would benefit from this proposed rule by having a better chance at obtaining jobs that some of the population of the H-4 workers currently hold, as the proposed rule would no longer allow H-4 workers to enter the labor market early.” We should expect the proposed rule in November 2018.
- Establishing a Maximum Period of Authorized Stay for F-1 and Other Non-immigrants: The U.S. Immigration and Customs Enforcement (ICE) will look to modify the period of authorized stay for F-1 students entering the U.S. Currently, when an F-1 student enters the U.S., they are allowed to remain in the country as long as they are engaged in their full course of study, which includes any period designated for practical training. In other words, the student is admitted for “Duration of Status” (D/S). The DHS will propose that this system be replaced with a maximum period of authorized stay, and options for extensions, for each applicable visa category. The Agenda states, “The failure to provide certain categories of nonimmigrants with specific dates for their authorized periods of stay can cause confusion over how long they may lawfully remain in the United States and has complicated the efforts to reduce overstay rates for nonimmigrant students. The clarity created by date-certain admissions will help reduce the overstay rate.” We should expect a proposed rule in September 2019
- Updating Adjustment of Status Procedures for More Efficient Processing and Immigrant Visa Usage: Currently, if an individual’s priority date is current, he or she may file the I-140 Immigrant Petition concurrently with the I-485 adjustment of status application. DHS now seeks to “eliminate the concurrent filing of visa petitions and Form I-485 for all applicants seeking an immigrant visa in a preference category, and proposes to make further changes to the appropriate dates when applicants can file Form I-485 and for ancillary benefits.” We should expect a proposed rule in September 2019.
For a full list of the Agenda, visit DHS 2018 Fall Regulatory Agenda.