December 04, 2019

Immigration Agencies Hint at Possible Regulatory Changes

Twice a year, in the spring and fall, each federal agency publishes its regulatory agenda. This is a list of changes to federal regulations that the agency is considering proposing during the next year or so. While the proposals may be implemented during the year, they are not guaranteed to be carried out within the proposed year, if at all.

The Department of Homeland Security (DHS) recently issued its Fall 2019 Unified Agenda, which includes proposals from DHS constituent agencies, U.S. Citizenship and Immigration Services (USCIS), U.S. Immigration and Customs Enforcement (ICE), and U.S. Customs and Border Protection (CBP). Below are highlights of proposals that, if enacted, would impact employers of foreign workers and universities enrolling foreign students. These proposals are further indications of the Trump administration’s scrutiny of immigration policies and procedures, including employment-based immigration.

Employers and Foreign Workers

H-1B Specialty Occupation

The H-1B work visa is for foreign nationals working in specialty occupations, which are generally positions that require at least a bachelor’s degree in a particular field. In 2017, President Trump issued his “Buy American and Hire American” executive order, which directed immigration agencies to tighten up adjudication and enforcement of immigration laws. Implementing the executive order in the H-1B context, USCIS has taken a narrow view of what qualifies as a specialty occupation. USCIS has been issuing numerous Requests for Evidence (RFEs) requiring employers to provide additional documentation and evidence to support H-1B petitions.

In the Unified Agenda, USCIS indicates that it is considering regulatory changes to the definition of “specialty occupation” to “increase focus on obtaining the best and the brightest foreign nationals via the H-1B program.” USCIS is also considering changes to the definition of eligible employer/employee relationships that would qualify for H-1B. Such changes could make it more difficult for professional services companies to place H-1B workers at third party customer sites. Finally, USCIS is considering changes to the wage requirements that H-1B employers must pay.

Eliminating Work Authorization for H-4 Spouses

Spouses of H-1B workers may reside in the U.S. in H-4 visa status. In 2015, some H-4 spouses were granted U.S. work authorization if the H-1B worker had reached a certain point in their permanent residency (green card) process. USCIS is proposing to eliminate the H-4 spouse work authorization program, which could affect thousands of employees working lawfully under the H-4 work authorization rule.

Changes to the L-1 Intracompany Transferee Visa Program

A foreign national who has worked abroad for at least a year with an employer affiliated with a U.S. entity may be able to work in the U.S. with an L-1A manager visa or an L-1B specialized knowledge worker visa. USCIS is considering revising the definition of “specialized knowledge,” presumably to make it narrower. USCIS is considering clarifications to the employer/employee relationship that could qualify for L-1 visas. USCIS is also considering imposing new wage payment requirements on employers of L-1 workers, similar to the current prevailing wage requirements associated with the H-1B visa program.

H-2B Temporary Workers

The H-2B visa program allows employers to engage foreign nationals for short-term, temporary employment. The employer must first advertise and recruit for U.S. workers. USCIS and the Department of Labor are promulgating changes to the recruitment requirements, including the elimination of a requirement to publish print newspaper ads.

Changes to I-485 Adjustment of Status Processing

The final stage of most employment-based green card cases after approval of an I-140 immigrant petition is the I-485 Adjustment of Status application. In certain circumstances, a foreign national and family members can file their I-485 Adjustment of Status applications concurrently with the I-140 petition, before the I-140 petition is approved. USCIS is considering changes to the I-485 process, including eliminating the concurrent filing option.

B-1 Business Visitors and B-2 Tourists

CBP is considering changes to clarify the scope of permissible activities for B-1 and B-2 visitors to the U.S.

Visa Waiver Program Visitors and ESTA Registration at Land Ports

Citizens of certain countries may visit the U.S. without visas under the Visa Waiver Program. Prior to travel to the U.S. by air, the Visa Waiver visitor must register with the Electronic System for Travel Authorization (ESTA). CBP is planning to implement ESTA registration for Visa Waiver visitors entering at land ports of entry.

Elimination of International Entrepreneur Parole Program

At the end of the Obama administration in January 2017, DHS promulgated the International Entrepreneur Parole Rule. This allows foreign entrepreneurs to enter the U.S. to start businesses without a visa on a parole basis. In May 2018, DHS proposed to eliminate this program and is continuing with the process of revocation.

Universities and Foreign Students

Changes to F-1 and M-1 Optional Practical Training (OPT)

Foreign students finishing an academic or training program at a U.S. institution are generally allowed to remain in the U.S. for a period of time after graduation to gain practical work experience in their field through the OPT program. ICE is considering changes to revise the practical training options available to graduating F-1 and M-1 students. There would be increased oversight of schools and students to reduce fraud and abuse.

Elimination of Duration of Status for F-1 Students and J-1 Exchange Visitors

Unlike most other visa categories, most F-1 students and J-1 exchange visitors entering the U.S. are not given a certain date by which they must depart the U.S. They can remain for “duration of status” (D/S), which generally means they may stay as long as it takes to complete their academic program. ICE is considering eliminating D/S. F-1 students and J-1 exchange visitors would be admitted for a specific period of time, as with other visa categories. To remain longer, F-1 and J-1 visa holders would have to file an application with USCIS to request an extension of their stay.

Vetting of University and Sponsor Organization Officials

Under the Student and Exchange Visitor Program (SEVP), designated school officials (DSOs) at universities play a key role in tracking foreign students studying at U.S. schools and universities in F-1 and M-1 visa status. Responsible officers (ROs) at sponsoring organizations perform a similar role for J-1 exchange visitors. ICE is proposing to establish a vetting program for DSOs and ROs to protect the SEVP system from criminal and national security threats.

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