The H-1B temporary work visa program has been the focus of much speculation lately. Recent news reports have claimed that the Trump Administration is planning major changes to the program in 2018. This update will provide information and perspective to help you plan and make decisions.
Before talking about possible specific changes, it is important to understand the basics of immigration regulation.
Immigration laws are enacted by Congress. Only Congress can change the structure of immigration law. For example, the U.S. Citizenship & Immigration Service (USCIS), which is an administrative agency, cannot stop issuing H-1Bs to people who meet the legal qualification Congress has provided.
Congress provides only broad outlines in the law. The details of implementation are left to the USCIS (in the case of H-1Bs). Under the Administrative Procedures Act (APA), another federal law, an agency must follow certain guidelines when enacting, changing, or rescinding regulations. The APA is a complex law itself. However, in most cases, an agency must publish a public notice and allow for a comment period to enact, change, or rescind a regulation. For example, USCIS could not change the wording of the criteria to grant an H-1B without following APA procedures. In most cases, this takes at least several months.
USCIS has more discretion to change interpretations of the law or regulations. In many instances, neither the wording of the law or the regulations address certain specific questions or direct how a word should be interpreted in practice. USCIS can implement policy guidance – formally or informally - to help examiners make the judgment calls needed when looking at an application. So long as policy guidance does not actually change a regulation, USCIS is free to do this without public notice or comment.
For example, last year USCIS decided that entry-level computer programmer jobs should not be assumed to be “specialty occupations” that meet H-1B guidelines without specific detailed information. USCIS issued this interpretation as guidance without a notice or comment period.
Revocation of three-year extension to H-1Bs in the “waiting line”
Normally, an H-1B can be approved for a total of six years. However, if the “green card” process has started and certain deadlines are met, additional extensions are possible. This concept is important especially for people from India and China, who, for many years, have had long waiting lines for green cards. Six years is not nearly long enough for a green card to be completed for people from these countries and possibly others, depending on the specific situation.
Recently, the Administration was reported to be thinking of ending the ability to extend the H-1B in three-year increments if the green card process has reached a certain milestone (the I-140 being approved). The law that allows the three-year extension says that USCIS “may” grant them, which gives some room to stop.
However, the same law also allows one-year extensions in many situations. That part of the law says the extensions “shall” be granted. USCIS would have no authority to stop granting one-year extensions.
Additionally, whether USCIS could stop granting three-year extensions would likely be litigated, especially if no notice and comment period was provided under the APA. If notice and comment period are provided, we would expect thousands of comments given the critical role that H-1B workers play in the U.S. economy for a wide variety of employers.
Although we do not think this change is imminent, it is credible that USCIS could be looking at such a proposal given the negative view of the program many in the Administration hold, which has been fueled by egregious actions of a few employers. Those ineligible for one-year extensions should look at options and develop a back-up plan.
Employers of H-1B workers who are beyond the six-year “regular” limit would see an increase in costs if USCIS ceases three-year extensions (because, at minimum, applying every year is more costly than every three years), as well as uncertainty for their businesses. We suggest you bring this concern to your members of Congress (and we are glad to help you do so).
Registration for the H-1B “lottery”
The law provides a limited number of H-1Bs each fiscal year (65,000 “regular” plus 20,000 for those who have earned U.S. advanced degrees). Since the number of applications have outstripped supply in the last several years, the process has become a “lottery” drawn at random to decide which applications to review.
For several years the USCIS has considered ways to streamline the process – and possibly make it less available to certain employers - including requiring employers to register in advance. This idea has resurfaced, according to some reports, but no details have been provided. The H-1B lottery filing deadline is the first five business days in April, so we do not expect any change to the process this year.
Revocation of H-4 Spousal Employment Authorization
The Obama Administration implemented a rule (after notice and comment) to allow spouses of H-1Bs who are in H-4 status to obtain employment authorization if the principal applicant has reached a certain milestone in the “green card” process (again, the approval of the I-140). Another rumor is that the Trump Administration is planning to rescind that rule.
We think the likelihood of this change is greater than the other changes discussed above. The Administration has expressed the belief that H-4 workers crowd out U.S. workers. A rule change to this effect has appeared on a regulatory agenda publication. However, no change has been announced.
A lawsuit, Save Jobs USA vs. Department of Homeland Security, is currently pending that claims irregularities in the H-4 employment authorization rule. The outcome of this lawsuit is not clear at this time, nor is the effect it may have on the timeline for a change in the rule.
We recommend that if you qualify and have not applied for an H-4 EAD, you do so. We also recommend that you file H-4 EAD extensions timely (up to six months in advance). It is unlikely that existing H-4 EADs would be cancelled. Finally, we suggest that if you have an H-4 EAD, you consider whether you have other options to continue working so you can be ready in case the rule changes.
We realize that the change in approach and policy of the current Administration is unsettling. Fortunately, our legal system includes protections against dramatic changes without the opportunity for public engagement. We strongly recommend that you let your members of Congress and the Administration know how the H-1B program has enhanced your business, created jobs, and provides critical services to U.S. citizens even before changes are proposed.