5.15.18

The U.S. Department of Homeland Security has announced plans for rulemaking that could make it even more difficult for employers to hire and retain foreign workers, including H-1B workers.

The DHS issued its Spring 2018 Regulatory Agenda last week. The agenda includes plans for significant changes to its regulations that apply to the U.S. Citizenship and Immigration Services and Immigration and Customs Enforcement.

Before the agenda items become law, the agencies will have to issue a Notice of Proposed Rulemaking, followed by a period to receive comments from the public, followed by issuance of a Final Regulation, which may or may not adopt suggestions made by the commenters. Although we will not know the specifics until proposed regulations are published, it appears that these initiatives are a further step in implementing the President’s Buy American and Hire American Executive Order to protect the “economic interests” of U.S. workers.

Here are the most noteworthy items on the agenda:

Pre-registration requirement for Cap Petitions, including H-1B petitions. The DHS proposes to amend its regulations governing petitions filed on behalf of alien workers subject to annual numerical limitations – so-called Cap Petitions. The DHS is expected to establish a pre-registration requirement for these Cap Petitions, which are filed annually in the first week of April. Currently, the DHS receives at least two petitions for every vacant slot. The regulatory proposal “is intended to allow U.S. Citizenship and Immigration Services (USCIS) to more efficiently manage the intake and lottery process for these H-1B petitions....”

The Notice of Proposed Rulemaking is expected in July.

More controversial is a proposal that “may include a modified selection process, as outlined in section 5(b) of Executive Order 13788, Buy American and Hire American.” We must wait to see what exactly the modified selection process will entail.

Tightening up on the H-1B program. The DHS also proposes “to revise the definition of specialty occupation to increase focus on obtaining the best and the brightest foreign nationals via the H-1B program, and revise the definition of employment and employer-employee relationship to better protect U.S. workers and wages. In addition, DHS will propose additional requirements designed to ensure employers pay appropriate wages to H-1B visa holders.”

“Specialty occupation” is a key H-1B term because it determines the scope of the H-1B program. Administratively, the USCIS has narrowed the scope of specialty occupation. A narrower definition of “specialty occupation” is likely to mean that fewer jobs will qualify for H-1B visas.

Interestingly, the H-1B statute and regulations nowhere say that H-1B visas are to go to the most highly skilled and highly compensated workers, despite the stated purpose of this agenda item.

The Notice of Proposed Rulemaking is expected in January 2019.

Removal of work authorization for certain H-4 spouses of H-1B non-immigrants. The DHS proposes to remove from its regulations the eligibility for employment authorization for certain H-4 spouses of H-1B non-immigrants. On February 25, 2015, the Obama DHS “published a final rule extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status.” Eligibility under the Obama rule is limited to H-4 spouses whose H-1B spouses had reached a certain stage of the green card process. The 2018 proposal would eliminate that eligibility.

It has been reported that there are close to 100,000 H-4 spouses who could lose their work authorizations as a result of this proposed change.

The Notice of Proposed Rulemaking is expected in June.

More protection for U.S. workers affected by employment of non-immigrant students. ICE will propose a rule “to improve protections of U.S. workers who may be negatively impacted by employment of nonimmigrant students on F and M visas. The rule is a comprehensive reform of practical training options intended to reduce fraud and abuse.”

Currently, students with F and M visas who earn a U.S. degree are eligible to apply for a year of Optional Practical Training work authorization. Students with STEM (Science, Technology, Engineering and Mathematics) degrees are eligible for an additional 24 months of Optional Practical Training that is subject to specific training requirements. It appears that the Trump Administration will seek to make significant changes to the current Optional Practical Training practices, including possibly doing away with STEM Optional Practical Training altogether.

The Notice of Proposed Rulemaking is expected in October.

We will keep you posted regarding these important topics. All of the proposals, to the extent that they restrict the hiring of foreign workers, will affect the business plans of employers who need to hire them.

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