By Roy Maurer
December 11, 2019 - SHRM
The Trump administration plans to move forward in 2020 with new regulations redefining key aspects of the H-1B and L-1 visa programs, rescinding employment authorization for certain spouses of H-1B workers and restricting or even eliminating work-training programs for foreign-born students with F-1 visas.
The most recent regulatory agendas for the U.S. Department of Homeland Security's Immigration and Customs Enforcement (ICE) and U.S. Citizenship and Immigration Services (USCIS) outline projected immigration rulemaking for the coming year.
"The glaring omission in [the administration's] agenda is the lack of any measure that will make it easier to hire foreign-born professionals, especially for roles that are difficult to fill in science and technology fields," said Shanon Stevenson, an immigration attorney and partner in the Atlanta office of Fisher Phillips.
Agency agendas feature goals that are often postponed or never come to fruition, but they can give an idea of the administration's priorities. Details of the proposed immigration regulations will not be available until they are published.
H-1B Revisions
The administration's long-promised proposed rule to "better protect U.S. workers and wages" by revising the definitions of an H-1B specialty occupation and the employer-employee relationship, as well as addressing H-1B workers' wages, is scheduled to appear before the end of 2019, according to USCIS.
The technology sector, especially, relies on the H-1B visa, intended for jobs requiring specialized skills and usually at least a bachelor's degree, but critics of the program—including Trump administration officials—argue that too many of the visas go to outsourcing companies using the program to displace U.S. workers and drive down wages.
The proposal would likely question whether certain occupations require a bachelor's degree in a specific field, whether there is a bona fide employer-employee relationship with workers placed at third-party worksites, and whether jobs under a certain salary level qualify as specialty occupations.
"Occupations like computer programmers and many others may not automatically be considered as specialty occupations requiring a bachelor's degree," said Carl Shusterman, an immigration attorney and owner of the Law Offices of Carl Shusterman, based in Los Angeles. "We expect the regulation to alter the definition of 'employer-employee relationship' in order to make it more difficult for outsourcing and staffing companies to place H-1B workers at third-party sites … it is also likely that these new immigration regulations would compel employers to pay H‑1B workers increased wages."
Washington, D.C.-based immigration attorney and Fragomen Worldwide managing partner Andrew Greenfield speculated that the new regulation could be the Trump administration's effort to codify USCIS adjudication polices issued over the last three years, which have resulted in a dramatic increase in requests for evidence (RFEs) and denials of H-1B petitions.
Stevenson agreed, noting that "the administration has been doing a lot of backdoor legislating through executive orders and internal memos, and this rule is a way to defend itself against an increase in lawsuits coming from employers."
The new rule, for example, "may specifically point to Department of Labor [DOL] materials like the Occupational Outlook Handbook and O*NET and prescribe that only occupations recognized by the DOL as always, invariably requiring a degree in a specific course of study can be accepted as specialty occupations," Greenfield said.
He added that the rule could:
Another significant change to the H-1B lottery has been finalized. USCIS announced Dec. 6 that the new registration system for selecting H-1B petitions will be in place for 2020. Employers seeking to file H-1B cap-subject petitions for the fiscal year 2021 cap must first electronically register and pay the associated $10 fee. The initial registration period will run March 1-20, and selected cases may be submitted starting April 1.
L-1 Changes
USCIS has also set its sights on the L-1 visa program, which allows multinational companies to transfer foreign executives, managers and experts within the company to U.S. offices.
"In September 2020, USCIS plans to propose new immigration regulations, which would impose wage requirements on employers of L-1 visa holders," Shusterman said. Unlike the H‑1B program, the L-1 program is not currently subject to wage requirements.
"The regulation is also expected to tighten the definition of what qualifies as 'specialized knowledge' in the L-1B category … [and] may make it more difficult for outsourcing companies to sponsor workers for L-1B visas," he said.
Stevenson stated, "The changes will absolutely make it more difficult for companies to transfer their employees to the U.S. to meet their business needs. The denial rates have increased for L‑1s, especially for L-1Bs, due to questions about whether employees really have specialized knowledge, and [USCIS is] already raising the standard on that, almost taking it to the 'extraordinary ability and achievement' definition commonly seen with the O visa. There's also been an increase in RFEs for L-1As, even questioning whether the president of a company is truly an executive position."
H-4 Work Permits
The proposal to rescind work authorization for select H-4 visa holders—the spouses of H‑1B workers who have been approved for a green card or whose H-1B status has been extended beyond the six-year limit—is scheduled for March 2020. The details of the proposed revocation of work permits for the tens of thousands of H-4 spouses, first expected in early 2018, are not yet known.
Foreign Student Visa Programs
The ICE proposal to revise work-training rules for foreign students with F and M visas, scheduled for August 2020, is expected to restrict popular employment channels for students, including the 12-month optional practical training (OPT) and curricular practical training programs, and 24-month OPT extensions for science, technology, engineering and mathematics (STEM) students.
The OPT program allows foreign nationals who study at or who have graduated from U.S. universities to live and work in the country for one year, while graduates with STEM degrees can apply for work authorization for up to three years.
In previous statements, the DHS said the rule will reduce fraud and abuse in the student work programs and improve protections for U.S. workers who may be negatively impacted by foreign national student employment.
Stevenson said that "there's no evidence that foreign workers who participate in the program reduce job opportunities for U.S. workers. It's a tool that helps U.S. employers fill a talent gap in STEM positions."
Schools also rely on the program to recruit international students. "We already see more international students who would typically come to the U.S. for their education going to schools in other countries like Canada, where they have an easier path to postgraduate employment," Stevenson said.
Another proposed regulation scheduled for February 2020 is expected to limit the time that a foreign-born student can study in the U.S., Shusterman said. "Duration of status would become a thing of the past."
The proposal seeks to modify the period of authorized stay for certain F-1 students from an authorized duration of status—typically the period a student is pursuing a full course of study, plus any authorized training following completion—to a specified end date with options for extensions.
The agenda also revealed that ICE plans to revise its rules on when unlawful presence accrues for people who violate their immigration status in the United States, an issue that immigrant advocates worry will penalize foreign national students who mistakenly or unknowingly overstay or violate the terms of their visas.
"This rule may be intended to counteract the lawsuit in which a federal judge issued a nationwide injunction, preventing the government from implementing a policy memo which would have barred international students who were found to have violated their F‑1 status to be subject to the 10-year unlawful presence bar," Shusterman said.
Known Employer Program
The DHS agenda also includes proposals to change the way adjustment-of-status applications are processed, reform the B-1 business visitor visa classification, increase consular fees for immigration filings made abroad and make the Known Employer pilot program permanent.
The pilot has been in effect since March 2016 and will run through May 2020. The program preapproves qualified employers that frequently hire foreign workers, saving time and paperwork for both the employers and the government.
"Having led USCIS during the [start of the] pilot, I remain a big believer in
the potential of a known-employer program to promote more efficient and fair
adjudications, including by avoiding duplication of effort by both adjudicators
and petitioning businesses," said Leon Rodriguez, former director of USCIS and
currently a partner at Seyfarth Shaw in Washington, D.C. "I urge USCIS to listen
closely to the business community as it designs the program, which would be the
best way to ensure that it reflects the realities of an increasingly complex
economy."