According to the Department of Homeland Security’s Spring 2019 Regulatory Agenda, changes to business immigration are on the way, particularly with regard to H-1B visas. It is unclear, however, when these rules will actually come to fruition.
Strengthening the H-1B Nonimmigrant Visa Classification Program
DHS wants to redefine what constitutes a “specialty occupation” and an appropriate “employer-employee” relationship. The plan is to propose regulations by August 2019. When this rule goes into effect, the change may not be noticeable because USCIS has already been using the proposed definitions in Requests for Additional Evidence that it has been issuing over the course of the past year.
H-4 EAD Rescission
The proposed H-4 EAD rescission rule had an expected publication date of May 2019. In February 2019, DHS took the first step toward publication by sending the rule to the Office of Management and Budget for review. While the proposed rule reportedly has not yet been approved by the White House Office of Information and Regulatory Affairs, DHS reportedly has received new economic analyses that must be reviewed before the proposed rule can be rolled out. Eliminating H-4 EADs for the close to 100,000 spouses who have them is expected to decrease tax revenues and lead to a drop in general economic activity that would not be balanced out by any predictable increase in job opportunities for U.S. workers.
Fees
Before the end of the summer, DHS plans to issue a rule regarding fees for the next year’s Cap H-1B pre-registration process. The pre-registration process was free under the original plan. In response to concerns that large companies would benefit most from free pre-registration, as they would be able to increase the numbers of pre-registrations that they file, DHS will propose adding a fee to the process. How large or small the fee actually is, and which companies will benefit, is yet to be seen. USCIS also plans to update (and increase) all of its filing fees within the next few months. The fee increases may be substantial, because petition and application numbers are down from previous years.
Other upcoming rules include the EB-5 Modernization Rule, an update to the Adjustment of Status process, the final elimination of the International Entrepreneur rule, and enhanced enforcement of public charge regulations. Jackson Lewis attorneys will continue to provide updates on these and others developments as they become available.