The Administration’s Fall 2018 Regulatory Agenda and More

The U.S. Department of Homeland Security (DHS) released its Fall regulatory agenda, providing an updated outline of immigration rulemaking in some key areas of business immigration. If many of the proposed rules become new regulations, they would greatly hamper employers’ ability to recruit and retain foreign workers. Similarly, attention should be given to U.S. foreign affairs as the Administration’s ongoing trade war against China is adversely affecting F-1 student visas issued to Chinese nationals.

No significant changes are happening today. Procedurally, it will take several months for a proposed rule to become a new regulation. The process involves a public notice and comment period of either 30 or 60 days (although not guaranteed all the time). After this period, DHS will review comments and may make changes before publishing the final rule with an effective date.

Below is a summary of the key items on the DHS regulatory agenda for us to closely monitor.

1. Tightening the H-1B Visa Program:

Projected publication date: August 2019

The H-1B is a work visa for professionals working in specialty occupations that require minimally a relevant bachelor’s degree (or its equivalent). To advance the Buy American, Hire American Executive Order, DHS will “propose to revise the definition of specialty occupation to increase focus on obtaining the best and the brightest foreign nationals” and “revise the definition of employment and employer-employee relationship to better protect U.S. workers and wages.” DHS will also “propose additional requirements designed to ensure employers pay appropriate wages to H-1B visa holders.”

If the definition of “specialty occupation” becomes more restrictive, fewer positions would qualify for H-1B visas. Although these proposed changes aren’t regulations yet, immigration practitioners are already seeing an increased number of Requests for Evidence (RFE’s) issued for H-1B petitions, including cap (lottery) petitions, extension petitions, and change of employer petitions. The National Foundation for American Policy (NFAP) also reported that the figures for H-1B denials and RFE’s rose in the fourth quarter of DHS Fiscal Year 2017.

To ensure the highest chance of approval, employers are strongly advised to provide detailed job duties when filing an H-1B petition. Information that describes an offered position in broad strokes would not be sufficient. The level of details that describes the weekly (or even daily) tasks with a percentage breakdown of the time spent on the tasks would be best. This approach would also help overcome a specialty occupation RFE.

2. Implementing Electronic Pre-Registration for the H-1B Lottery Process:

Projected publication date: October 2018

DHS is working on a proposal that would require employers to pre-register for the H-1B lottery before they can file full H-1B lottery petitions with the U.S. Citizenship and Immigration Services (USCIS). Procedurally, the pre-registration process could look like the following:

• In the pre-registration period, the employer completes a form online for a foreign worker who would like to be considered for the H-1B lottery, providing information about the company, the offered position, and the foreign worker’s professional/academic credentials.

• Once the pre-registration period closes, based on the submitted forms, USCIS conducts the regular and advanced degree lotteries and select enough cases to meet the annual H-1B quota.

• The lucky winners are then notified and permitted to file their full H-1B lottery petitions with USCIS as early as April 1st of a given calendar year.

This proposed model is intended to allow USCIS “to more efficiently manage the intake and selection process for these H-1B petitions” and also “help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.”

It’s reported that USCIS plans to implement the pre-registration process for the FY2020 H-1B lottery filing season (meaning 4/1/2019 when employers are permitted to file). However, many details are confidential at this time and it remains to be seen whether the pre-registration process would actually be implemented for the 2019 (calendar year) H-1B lottery filing season.

3. Terminating the H-4 EAD Program:

Projected publication date: November 2018

As anticipated, DHS is still on course to rescind the H-4 EAD regulations for spouses of H-1B workers. DHS takes the position that 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.”

Assuming the H-4 EAD program is terminated, it remains to be seen whether an H-4 EAD card would remain valid until the expiration date or would be immediately revoked. Another possibility is the H-4 EAD losing its validity after a certain date (as provided by the new rescission regulations) or the expiration date, whichever is sooner.

Given the uncertain future of the H-4 EAD program, eligible H-4 spouses are strongly encouraged to apply for their initial H-4 EAD’s or renewals as early as possible. Another opportunity to apply for an H-4 EAD renewal is at the time of the concurrent H-1B change of employer and H-4 extension filings – regardless of the expiration date of the H-4 EAD. For longer term planning, H-4 EAD holders are also encouraged to explore other feasible work visa options.

4. Reforming Practical Training for International Students:

Projected publication date (from the Spring 2018 Agenda): October 2018

The Optional Practical Training (OPT) is a popular way for international students on F-1 visas to obtain work authorization. An F-1 student is eligible for 12 months of OPT work authorization, with the possibility of obtaining a 24-month extension if the F-1 student has a STEM degree.

Attention should still be given to this proposal as it appeared on the Spring Agenda (although removed from the Fall Agenda). The U.S. Immigration and Customs Enforcement (ICE), the investigative and enforcement arm of DHS, was expected to propose a new rule to “improve protections of U.S. workers who may be negatively impacted by employment of nonimmigrant students on F and M visas.” The proposed rule is “a comprehensive reform of practical training options intended to reduce fraud and abuse.”

While details of the “comprehensive reform” are sparse, one could speculate that any of the following is possible:

• Tightening/increasing reporting requirements for both employers and international students.

• Reducing the OPT work authorization period.

• Eliminating the STEM extension.

5. Establishing a Maximum Period of Authorized Stay for F-1 and Other Nonimmigrants:

Projected publication date: September 2019

Currently, F-1 students are issued “duration of status” (D/S) for their period of authorized stay in the U.S. D/S refers to the period an F-1 student is pursuing a full course of study, plus any authorized practical training that follows the degree completion.

ICE will “propose to modify the period of authorized stay for certain categories of nonimmigrants traveling to the United States from ‘duration of status’ (D/S) and to replace such with a maximum period of authorized stay, and options for extensions, for each applicable visa category.”

ICE’s justification is that 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.”

6. Processing F-1 Visas for Chinese Students:

On the topic of F-1 visas, this update concerns an F-1 student’s application for a visa stamp (i.e., travel document) with the U.S. Consulate/Embassy. As the trade war between the U.S. and China continues to intensify, Chinese citizens majoring in robotics, aviation, and high-tech manufacturing are being impacted by a recent visa policy change at the U.S. Consulate/Embassy level.

As reported in May 2018, the U.S. Department of State announced that Chinese graduate students would be limited to one-year F-1 visas if they study in the above-referenced fields. In the past, F-1 visas were routinely issued to Chinese nationals in a five-year duration per the Visa Reciprocity Schedule.

In the context of the trade war, this change in visa policy is part of the Administration’s efforts to address alleged theft of U.S. intellectual property by China. Interestingly, robotics, aviation, and high-tech manufacturing are also national priorities identified by Beijing in its ambitious “Made in China 2025” strategic plans.

Given the visa policy change, not only should the impacted Chinese F-1 students expect to receive one-year visas, they should also prepare for the possibility of administrative processing (i.e., a thorough background check and technology clearance) after attending their visa interviews at the U.S. Consulate.

• Among other items, visa applicants should prepare ahead of time their detailed resumes/CV’s (including a list of publications, if applicable), research and details of course of study, and a more detailed description of their U.S. offered position.

• For employers, supervising managers should be aware that delays resulting from administrative processing could happen. They should have a contingency plan for work interruption if their employees encounter administrative processing at the U.S. Consulate.

7. Updating I-485 Adjustment of Status (AOS) Procedures:

Projected publication date: September 2019

The I-485 AOS application represents the final stage of a foreign national’s green card process. One thing that stands out in this proposal is DHS potentially eliminating the concurrent filing of I-140 immigrant visa petition and I-485 AOS application – a strategy that’s currently available to eligible employment-based green card applicants.

Other details provided in the proposal include:

• Improve the efficiency in the processing of I-485 AOS applications, reduce processing times, improve the quality of inventory data provided to partner agencies, reduce the potential for visa retrogression, promote efficient usage of available immigrant visas, and discourage fraudulent or frivolous filings.

• Propose to make further changes to the appropriate dates when applicants can file Form I-485 and for ancillary benefits.

• Anticipate that reduced AOS processing times, steady receipts, and better data quality “will ensure more efficient usage of the available immigrant visas and reduce visa retrogression.”

The Fall 2018 regulatory agenda represents the Administration’s current plans to restrict the various employment-based immigration benefits. Employers and their foreign workers should plan accordingly to meet their respective business and personal needs.

Disclaimer: No attorney-client relationship is created by the use of this article. This article is for informational purposes only, and shall not be taken as legal advice on any particular set of facts or circumstances. Please seek the advice of a competent attorney to assist with your specific immigration questions. Any reference to prior results does not guarantee or imply similar/same future outcomes. This article may provide links to third-party websites; and I assume no responsibility for the accuracy of the contents of such websites. Any views expressed in this article are not the views of my employer.