Seismic Business Immigration Policy Shift in the Works for 2018

by Foley Hoag LLP
Contact

New changes to H-1B Lottery; H-4 EADs on the chopping block; AC 21 H-1B extensions in trouble; and how to plan for it all

Changes to the H-1B Program and the H-1B Visa Lottery

The Department of Homeland Security (DHS) plans to revise the lottery process for the upcoming fiscal year. The announcement may come as early as next month. It proposes a pre-registration system for cap-subject H-1B visa applicants. DHS appears to be looking to revive a 2011 proposal where employers would submit certain specified information about desired H-1B beneficiaries to USCIS through an online registration system and USCIS would then run the lottery against those submissions and, if that registration is selected in the lottery, only then would the complete H-1B petition be submitted to USCIS for processing.

The agency indicated it may also modify the selection process, currently completed through a random electronic lottery, so that visas would be awarded to the “most-skilled or highest-paid petition beneficiaries,” as was contemplated in Trump’s “Buy American Hire American” executive order in April 2017 (click here for our summary). To date, there are very few details available about how the new selection process will work and what criteria will be used to evaluate the H-1B petition during the pre-registration process. There is speculation that this may mean that during the H-1B Lottery selection process, priority may be given to those with highest salaries, which is essentially a move intended to prevent US employers from hiring foreign professional for level 1 wages.

The Administration has also already started to informally implement significant changes the way that it applies some of the substantive rules for the H-1B program. For example, USCIS has doubled the amount of RFEs (requests for further evidence) notices issued on H-1B petitions, and the denial rate on H-1B petitions has also increased by the same measure. The requests and denials by USCIS seem to focus on (1) whether the H-1B position truly requires a bachelor's degree in a specific field, and (2) whether a position using a Level 1 prevailing wage under the Department of Labor’s (DOL) prevailing wage guidance truly qualifies as a "specialty occupation." USCIS’s adjudicative actions seem to be instructive and consistent with the notion that the new lottery process would favor that a greater number of H-1B visas be awarded to the “most-skilled or highest-paid” foreign nationals.

In addition, DHS reportedly plans to propose a rule later this year that would revise the definition of specialty occupation to increase focus on truly obtaining the “best and brightest” foreign nationals under the H-1B program. It is reported that USCIS intends to revise the definition of employment and employer-employee relationship to help better protect US workers and wages. The target effective date of this change is October 2018.

Termination of H-4 EADs

DHS is also preparing to issue a new proposed regulation in February 2018 to rescind the provisions on H-4 spousal work authorization. DHS stated this in a motion they filed with the US Court of Appeals for the District of Columbia Circuit last week. The court was hearing an appeal in the case of Save Jobs USA v. DHS, a lawsuit brought by a group of US technology workers challenging the H-4 EAD rule. The lawsuit was dismissed, but the plaintiffs are seeking an appeal. DHS asked the court to place the appeal on hold for another six months (this is DHS’s fourth extension request) while it considers its position on the regulation. The court will need to decide whether to proceed and hear the merits of the case or hold the litigation in abeyance as requested.

Regardless of what the court decides to do in the litigation, it appears that DHS will move forward with publishing new regulations as planned next month. If they rescind the H-4 EAD as reported, then it will likely go into effect this summer. What we do not know is whether DHS will allow current EADs to remain valid through their expiration, whether there will be a grace period during at which time H-4 EAD holders can renew their EADs as they phase out this program, or if H-4 EADs will be invalid the date the final rule is published.

Policy Shift on AC 21 H-1B Extension

The Administration also seems to be considering a new policy to prevent H-1B visa extensions under the American Competitiveness in the 21st Century Act (AC21) of 2002. Under AC21 Act, H-1B visa holders were allowed to extend their status beyond the normal 6 year limit if their Form I-140 Immigrant Petition was approved, but were unable to adjust status to permanent residency due to per country limits. It appears that DHS is specifically looking at whether it can reinterpret the "may grant" language in AC21 to limit extension grants. DHS has made no formal announcement regarding this policy change. In fact, because the existing rules were established by statute, it would likely require Congressional action to make this change.

Conclusion

It appears that we will continue to see, through some combination of rulemaking, policy memoranda, and operational changes in line with the President’s executive orders, continuing restrictions in the use of skilled foreign labor. As we continue to monitor these developments, employers need to consider the need to affirmatively act to make the needs of US employers heard in this area to try to prevent unreasonable restrictions on the use of skilled foreign labor.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Foley Hoag LLP | Attorney Advertising

Written by:

Foley Hoag LLP
Contact
more
less

Foley Hoag LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.