2018 immigration agenda includes reforms to professional, student visa worker programs
By Roy Maurer
Jan 3, 2018 - SHRM
The spouses of H-1B visa holders with H-4 visas will lose their work authorization under a regulatory change expected to be issued by the Trump administration early this year.
The proposed rule terminating employment authorization for tens of thousands of H-4 workers is scheduled to be announced in February, according to the regulatory agenda published by the Department of Homeland Security (DHS) Dec. 15.
The change is likely to be the first the Trump administraton makes to employment immigration in the new year, but not the last. DHS has proposed structural reforms to the H-1B and F-1 visa programs as well, in accordance with President Trump's "Buy American, Hire American" executive order, issued in April.
The 2018 DHS regulatory agenda contains many changes that could greatly affect employers' business immigration programs as they pertain to individuals in H-1B, H-4 and F-1 status, said Michelle Gergerian, an attorney in the Boston office of law firm Seyfarth Shaw. But the rules must first go through a notice and comment period followed by a formal approval process that will take many months, she said.
Employers should keep in mind that it is premature to draw conclusions about the proposed changes without first seeing the text of the rules, which have not been released, or even drafted in some cases, said Jacob Cherry, an immigration attorney based in the Atlanta office of Ogletree Deakins.
"Both the agenda itself and the timing for the rules are aspirational,"
he continued. "In prior years, only a select number of proposals have actually
turned into rules, and even fewer have actually followed the stated
timelines."
Finally, proposed rules can get caught up in legal challenges, delaying implementation, assuming the rules survive at all.
That being understood, the DHS has proposed the following regulatory changes to employment visa programs for 2018.
President Barack Obama's administration created a work permit for H-4 visa holders in 2015, and about 41,500 recipients—the spouses of H-1B workers seeking employment-based green cards, mostly women from India—were granted work authorization under the program in fiscal year 2016, the latest data available.
Supporters of the Obama rule say that the current regulation helps attract and retain skilled foreign workers to the United States. They point to the economic pressure that H-1B workers waiting for a green card—which can take over 10 years for an Indian national—will feel to leave the country if their spouses can't legally work.
That's a supplementary aim of the expected proposed rule eliminating H-4 work authorization, say critics of the Obama rule, arguing that rescinding the work permits will help preserve more jobs for U.S. workers. "There were no safeguards [in the Obama rule] to make sure they weren't displacing or undercutting U.S. workers," said Jessica Vaughan, director of policy studies for the Center for Immigration Studies, a Washington, D.C.-based think tank.
"Traditionally when programs like this end, the government allows those with
valid employment authorization documents [EADs] to continue to be able to work
until the end of the EAD period," said Chris Musillo, immigration attorney and
managing partner at law firm Musillo Unkenholt in Cincinnati. He recommended
that H-4 spouses eligible for EADs file for them immediately and those with EADs
set to expire soon immediately file for an extension.
DHS intends to propose a rule by February establishing an electronic registration system for H-1B cap-subject lottery petitions. The agency is planning to resurrect a rule first proposed in 2011 meant to more efficiently manage the intake and lottery process for H-1B petitions.
"DHS anticipates that implementing a preregistration process could … potentially reduce the cost and time involved in petitioning for H-1B [workers] through an up-front cap selection process where only those employers who have obtained a cap number would be required to submit the entire petition," the agency said.
"It remains to be seen whether DHS can marshal their resources and systems quickly enough to roll out this preregistration process in time for the upcoming cap season," said Julie Pearl, CEO and managing attorney of the Pearl Law Group in San Francisco. "It is possible that all companies petitioning for H-1Bs in the upcoming H-1B cap rush will be required to preregister for a spot in the annual quota."
The proposal may also include a modified selection process for H-1B workers, as outlined in the Buy American, Hire American executive order, and specifically that "H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries."
By October, DHS plans to issue regulations revising H-1B visa eligibility criteria to raise the standard on what constitutes a specialty occupation, revise the definition of the employer-employee relationship and add new requirements designed to protect wages for H-1B workers.
DHS likely intends to revise H-1B regulations in order to reflect the recent rash of requests for evidence, Pearl said. "We expect to see changes making it harder to qualify jobs as specialty occupations, or positions that require at least a bachelor's degree, a threshold requirement for H-1B approval," she said. "We also expect to see DHS tighten their definition of the employer-employee relationship, which comes up most often in the context of companies placing their H-1B employees at client sites. Finally, DHS has indicated that they will place further restrictions on prevailing wage rules."
Pearl said she doesn't expect these changes to occur before the 2018 H-1B cap season ends in April.
Immigration and Customs Enforcement (ICE) is preparing "a comprehensive reform" of practical training programs for foreign students on F and M visas to reduce fraud and abuse.
"Revisions will likely include additional employer obligations and possibly a rescission or limitation of the Obama administration's extension of STEM Optional Practical Training from 17 to 24 months," Gergerian said. The STEM Optional Practical Training program currently gives foreign graduates of U.S. universities with science, technology, engineering and mathematics degrees up to two years to work in the United States past an initial 12-month work grant if they work for a company that participates in E-Verify.
Cherry noted that in addition to the above, DHS has scheduled a proposed rule for November clarifying the criteria for admission to the United States under the B-1 visa for temporary business travel and the Department of State is working on several rules that would modify the J-1 exchange visitor program, including a final rule scheduled for February expanding the types of jobs prohibited under summer work travel.