Looking ahead to 2020, a lot of changes are in store for U.S. immigration policy. Not through laws passed by Congress, but through rule-making processes from Federal agencies including USCIS.
The White House Office of Management and Budget recently released its regulatory agenda, which outlines policy priorities for federal agencies, including the Department of Homeland Security. DHS oversees U.S. Citizenship and Immigration Services (USCIS) and Immigration and Customs Enforcement (ICE).
The erroneous belief that employment-based visas eliminate opportunities and reduce wages for U.S. workers underpins the proposed immigration-related reforms. The proposed immigration regulations would affect H-1B and L-1 visa candidates and their employers, EB-5 investors, and international students.
The administration aims to finalize these priorities by May, making them more difficult to reverse if Democrats take control of the White House and Senate next year, according to Bloomberg Law. The May timing would prevent challenges to the regulations under the Congressional Review Act. Republican lawmakers used this law shortly after Trump was sworn in to end a host of regulations put in place by the Obama administration. Under the Congressional Review Act, Congress can challenge a “major” regulation within 60 legislative days after it is sent to lawmakers for review.
DHS aims to propose a rule regarding the H-1B visa for specialty occupations next month. The proposed rule would revise the definitions a specialty occupation, employment, and employer-employee relationship. The proposal will also impose additional wage requirements for employers of H-1B employers. This proposal has been published in previous regulatory agendas.
Details of the proposed regulatory changes remain unclear. However, USCIS could eliminate certain occupations from consideration as a specialty occupation as it did in 2017 when it issued a policy memo stating that it no longer considered computer programming an H-1B specialty occupation. If the Department of Labor Occupational Outlook Handbook does not specify a bachelor’s degree as a minimum requirement for an occupation, USCIS could eliminate that occupation from consideration as a specialty occupation, according to a story in Forbes,
Changing the definition of employment and employer-employee relationship will likely make it even more difficult for IT and other services or consulting companies to place employees at client offices. These employers have already experienced tougher restrictions and higher H-1B denial rates.
Denial rates for H-1B visa applications have increased dramatically under the Trump administration and will likely increase with additional restrictions. The denial rate for new H-1B petitions jumped to 24 percent through the third quarter of fiscal year 2019 from just 6 percent in fiscal year 2015, according to an analysis by the National Foundation for American Policy.
L-1 visas enable an employer to transfer employees working at an office abroad to the U.S. The L-1A visa enables a U.S. employer to transfer an executive or manager from one of its foreign offices to an existing office in the U.S.—or to set up one in the U.S. The L-1B visa enables a U.S. employer to transfer an employee with specialized knowledge from one of its foreign offices to an existing office in the U.S.
This is the first time the Trump administration has targeted the L-1 program in its regulatory agenda. Similar to its H-1B rule, DHS proposes to change the definitions of specialized knowledge, employment, and the employer-employee relationship, as well as impose wage requirements for employers. Currently, L-1 visas do not have a wage requirement.
The denial rate for L-1 visa petitions hit 28.1 percent in fiscal year 2019, up dramatically from 15 percent in fiscal year 2016, according to USCIS data.
The administration continues its call for restricting OPT (Optional Practical Training), and STEM OPT, engineering, or math (STEM). In its regulatory agenda, the Trump administration simply states that “ICE will amend existing regulations and revise the practical training options available to nonimmigrant students on F and M visas.” This proposal, which has a target date of August 2020, appeared previously in the regulatory agenda.
OPT enables international students to work for one year after graduation. STEM OPT allows international students to work an additional 24 months in STEM (science, technology, engineering, and math) fields. These programs enable U.S. employers to attract the best and the brightest international students who completed their field of study in the U.S.
3- and 10-Year Bar
The U.S. deals severe consequences to individuals who are unlawfully present, which means spending time in the U.S. without a valid visa, green card, or other permission. An individual who has been in the U.S. without permission for more than 180 days but less than one year is barred for three years from re-entering the U.S. An individual who accrues one year or more of unlawful presence is barred for 10 years.
For the first time, the administration included unlawful presence and inadmissiblity in the regulatory agenda. DHS intends to “expand upon certain current agencies policies, including whether certain failures to abide by the conditions of admission as a nonimmigrant can result in accrual of unlawful presence.” It also intends to clarify the conditions under which individuals subjected to the three- or 10-year bar can be admitted after waiting the required period of time.
EB-5 Investor Green Card
The administration placed two proposed rules regarding EB-5 green cards on the regulatory agenda. One would make changes to the EB-5 regional center program, including how regional centers are designated, maintain their status, and are terminated from the program. The other proposed rule would “increase monitoring and oversight of the EB-5 program as well as encourage investment in rural areas.”
The regulatory agenda includes a host of other immigration-related proposals including:
- Adjustment of Status: DHS will propose a rule that among other things will “eliminate the concurrent filing of visa petitions and Form I-485 for all applicants seeking an immigrant visa in a preference category.” The proposal will include changes to when applicants can file Form I-485 and apply for other benefits.
- H-4 EAD: Rescinding work authorization (employment authorization document, or EAD) for H-4 visa holders continues to be placed on the regulatory agenda. A proposed rule ending the H-4 EAD program has been under review since earlier this year. A proposed rule is expected to be published in March.
- Family Sponsorship: According to the regulatory agenda, DHS intends to increase the minimum income and assets required in an affidavit of support submitted by family sponsors. It will also allow public benefit granting agencies to more easily obtain information from USCIS sponsored immigrants and their sponsors.
- Fees: Unlike most other federal agencies, USCIS is funded almost entirely by user fees. The cost of services will be evaluated according to the regulatory agenda. A regulatory proposal outlining fees increases appears likely.
Take Action Now
The time is now to take action before these more restrictive immigration policies get implemented. The Alcorn Immigration Law team can determine the best immigration strategies for you, your company, your employees, or your family. The team has prevailed in more than 95% of the immigration petitions and cases they’ve handled. Contact us for a consultation.