The Department of Homeland Security (DHS) published its semi-annual regulatory agenda this week, outlining priorities that would include significant changes to the H-1B, Optional Practical Training, H-4 and B-1/B-2 visa programs.

Key points:

  • H-1B reform. DHS proposes to revise the definition of specialty occupation to “increase focus on obtaining the best and the brightest foreign nationals.” The proposal would also revise the definition of employment and employer-employee relationship “to better protect U.S. workers and wages.” The agency will also propose additional requirements designed to ensure employers pay appropriate wages to H-1B visa holders.
  • Optional Practical Training. Immigration and Customs Enforcement (ICE) plans to amend existing regulations and revise the practical training options available to nonimmigrant students on F and M visas.
  • H-4 EAD rescission. DHS proposes to remove H-4 spouses of H-1B workers who are in the green card process from being eligible to apply for employment authorization. The proposed rule has been pending final review by the Office of Management and Budget since February 2019.
  • B-1/B-2 visitors. DHS proposes to modify the period of admission and extensions of stay for tourists and business visitors to “better align” with the Immigration and Nationality Act.
  • Maximum period of stay for students. ICE plans to set maximum periods of stay for students and exchange visitors and to eliminate the grant of stay based on their “duration of status.”
  • Unlawful presence. USCIS plans to propose a regulation to “enhance the integrity of” unlawful presence inadmissibility provisions. The administration previously issued a policy memorandum that changed the way unlawful presence was calculated for foreign students and exchange visitors, but implementation was blocked by a federal court.
  • Fee rule. USCIS is finalizing a fee rule, and is expected to make a final rule available for public inspection in the coming months. While the agency is likely to increase fees, it is not known how substantial the increases will be. The rule is moving forward as USCIS faces a funding crisis that could force significant cutbacks.

BAL Analysis: DHS continues to pursue an aggressive agenda to tighten key immigration routes for foreign high-skilled workers. Many of the proposals, however, have been in the works for months, if not years, and it is not clear how many of them the agency will be able to complete before the November election. BAL is closely monitoring regulatory developments and will release additional information as it becomes available.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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