On Dec 18 2017 by Michele G. Madera

CLIENT ALERT: The Latest Proposed Changes to U.S. Immigration

By Michele G. Madera

2018 looks to be yet another eventful year for immigration.

There are several proposed changes to U.S. immigration regulations that are scheduled to be published for notice and comment. These each may have a distinct impact U.S. immigration, as well as employers who rely on foreign nationals to supplement their workforce. Below is a description and timeline of some of the proposals for rules, along with a brief analysis. We want to emphasize that there are currently no changes and it may be a year or more before we see any changes to the items below- these are proposals to draft changes to the current regulations. The timelines described below are estimates provided by DHS.

  • Remove Employment Authorization for H-4 Dependents: DHS plans to propose removing the regulation that allows certain H-4 spouses of H-1B nonimmigrants to obtain employment authorization. The Notice of Proposed Rule Making (NPRM) is scheduled for February 2018.
    • H-4 employment authorization is limited to situations where the H-1B beneficiary has been in the U.S. for a long period of time and/or has reached a specific milestone of the permanent residence process. This benefit became a rule under the Obama administration to allow spouses the opportunity to work in the U.S. when they are facing long backlogs to the permanent residence process. Taking away this benefit will cause employers to face turnover, as well as impact the lives of many families who have benefited from a spouse being able to work outside the home.
    • DHS acknowledges impact of lost filing fees and the labor turnover costs for employers who employ H-4 EAD holders.
  • Revising the definition of Specialty Occupation for the H-1B classification: DHS is proposing to revise the definition of specialty occupation, it says, “to focus on the best and brightest foreign nationals, as well as adjust the definition of employment and employer/employee relationship to better protect U.S. workers and wages.” It will also propose additional requirements to ensure employer pay H-1B visa holders the appropriate wages. The NPRM is anticipated for October 2018.
    • This action is a direct result of President Trump’s Hire American, Buy American Executive Order.
    • Currently, the H-1B category is reserved for professionals working in a specialty occupation, meaning that the position requires at least a Bachelor’s degree in field related to the proffered position. There is no requirement that the foreign national be the best at the job, or the brightest. Rather, the H-1B category is reserved for employers who require a foreign national with the right related education (and in some limited cases, experience) necessary to perform in this highly complex and specialized role.
    • The revision to the definition of employer and the employer/employee relationship is not yet described. However, it seems that this will be targeting third-party placements/consulting firms. By revising this relationship, it may have a dramatic impact on both immigration law, and employment law. Currently, most consultants are not treated as employees of the end-client and the end-client is limited in its responsibility. If this definition changes, we could see the end-client become more responsible for contractors.
    • This rule may have additional compliance requirements to demonstrate that H-1B beneficiaries are being paid appropriate wages, as well as ensuring that the U.S. workers are making similar wages.
  • Registration Requirement for H-1B Employers: DHS continues to propose developing an electronic registration program for H-1B petitions subject to numerical restrictions. The NPRM would be February 2018.
    • This pre-registration program would significantly alter the current H-1B cap process, as only employers that obtained a cap number would submit the full H-1B petition filing. However, there is a caveat as the evaluation of this process will be considered along with the agency’s goal to ensure H-1B cap cases are provided to the best and brightest foreign nationals.
  • Practical Training Reform: Immigration & Customs Enforcement hopes to propose new requirements for the employment of students on F and M visas, in order to reduce fraud and abuse during the practical training period of the visa. This would include increased oversight of the schools, as well as the students who participate in the program. The NPRM is scheduled for October 2018.
    • This may be similar to the additional oversight requirements employers and universities face as part of the additional practical training time allocated to foreign students obtaining a degree in a STEM field. It may require employers to attest to the training components of the positions, as well as how they relate to the degree, and have the universities sign off on these programs.
  • Rescind the International Entrepreneur Rule: DHS will introduce regulations to rescind the International Entrepreneur Rule (IER). The date for this is November 2017. As such, it is unclear how quickly DHS will prepare this proposal, as it has already missed its targeted timeframe.
    • The IER has had a difficult path in its short life. President Obama’s administration introduced this rule, which was finalized in January 2017, to take effect on July 17, 2017.
    • The current administration delayed the effective date of the IER on July 11, 2017; however, in the last few weeks, the rule has taken effect as the U.S. District Court for the District of Columbia found that the delay of the rule was improper as DHS bypassed the traditional notice and comment period for rulemaking.
    • Currently, USCIS is accepting applications for IER; a final rule would put an end to that.
    • Please feel free to read more about IER’s history here.

If you have any questions regarding these proposed changes, please contact your Klasko attorney.

If you haven’t already, please sign up for Klasko Client Alerts and newsletters as we follow these proposed changes.

 

The material contained in this article does not constitute direct legal advice and is for informational purposes only.  An attorney-client relationship is not presumed or intended by receipt or review of this presentation.  The information provided should never replace informed counsel when specific immigration-related guidance is needed.

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