The Department of Homeland Security (DHS) has issued its Fall Regulatory Agenda allowing a glimpse of planned future restrictions on U.S. immigration benefits. DHS Fall Regulatory Agenda Here are a few of the highlights with their planned launch time frames for proposal:
“Strengthening the H-1B Nonimmigrant Visa Classification Program” December 2019 (Proposed Rule Stage)
DHS states that it will propose to revise the definition of specialty occupation to increase “focus on obtaining the best and brightest foreign nationals via the H-1B program.” Presumably, this regulation will align the regulations with the definition already rolled out in numerous Requests for Evidence (RFEs) and denials. The rate of RFEs for H-1B visas has gone from 6% in FY 2015, to 24% in the third quarter of 2019. Attorneys report denials of H-1B applications for occupations including Market Research Analysts, Computer Systems Analysts, Computer Programmers and Business Intelligence Analyst.
This new rule will also revise the definition of “employer-employee relationship” to continue ratcheting down the scope of employment relationships when employees are working at third-party worksites. This is another area that has been a frequent topic of RFEs resulting in numerous denials and shortened H-1B validity periods. The proposed regulation is also intended to determine whether a job paying a “Level I” wage salary can qualify as a “specialty occupation.”
All told, these proposals are likely to narrow the pool of occupations, employment relationships and wage levels DHS deems qualified to support an approvable H-1B petition.
“Removing H-4 Dependent Spouses From the Classes of Aliens Eligible for Employment Authorization” March 2020 (Proposed Rule Stage)
This regulatory item would remove a current regulation that authorizes H-4 spouses of H-1B employees to receive employment authorization. The Trump Administration has had its sights on this regulation since President Trump gained office. The removal of H-4 employment authorization will affect more than 100,000 H-4 foreign nationals who have been issued employment authorization documents.
“Strengthening the L Nonimmigrant Classification” September 2020 (Proposed Rule Stage)
DHS states that it will propose to revise the definition of specialized knowledge to “clarify the definition of employment and employer-employee relationship, and ensure employers pay appropriate wages to L-1 visa holders.” As with the scheduled H-1B regulatory changes, this regulation will align the regulations with the definition already rolled out in numerous L-1 Requests for Evidence (RFEs) and denials. The standards for “specialized knowledge” have been constricted to the extent that voluminous stacks of paper are now required to prove the uniqueness of an L-1B’s knowledge within the sponsoring company. This regulation will likely solidify the standard currently applied by DHS adjudicating officers.
Unlike H-1B requirements, L-1 regulations do not currently require a set wage for qualification. This regulation appears designed to address this concern.
“Enhancing the Integrity of Unlawful Presence Inadmissibility Provisions” September 2020 (Proposed Rule Stage)
This rule addresses the lack of implementing regulations for the three and ten-year bars to admissibility and the permanent bar to admissibility triggered by accumulation of “unlawful presence.” Although effective since April 1, 1997, these bars have been implemented through numerous memos from DHS officials. DHS states that the proposed regulations may “include or expand upon certain current agency policies, including whether certain failures to abide by conditions of admission as a nonimmigrant can result in accrual of unlawful presence.”
At present, a nonimmigrant accrues unlawful presence when he or she overstays their period of admission. Accumulation of more than 180 days of unlawful presence may trigger a 3 year bar to admissibility. More than 365 days of unlawful presence may trigger a 10 year bar. Actions, such as unauthorized employment, do not currently trigger unlawful presence. Implementation of regulations that broaden the scope of triggers to unlawful presence will significantly complicate determinations of admissibility in the future.
“Updating Adjustment of Status Procedures for More Efficient Processing and Immigrant Visa Usage” April 2020 (Proposed Rule Stage)
Among other “efficiency measures,” DHS proposes to eliminate the concurrent filing of visa petitions and Adjustment of Status “Form I-485” for all applicants seeking an immigrant visa in a preference category. Additionally, the regulation would make changes to dates when applicants can file “for ancillary benefits.” This rule would disconnect the last two stages of the Immigrant Visa Petition / Adjustment of Status (“green card”) application process. Currently, an applicant may file the last two stages of the green card process together along with applications for a travel document and employment authorization. This is often the first opportunity that dependent spouses have to obtain employment authorization. This rule would delay an applicant’s ability to file these follow on applications.