More Workplace Immigration Rules on Horizon for Year’s End

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By Laura D. Francis

Businesses that rely on foreign workers may want to prepare for several regulations that are likely to be released within the next few months.

Companies could see less paperwork to bring in H-1B skilled guestworkers, but some of those workers could see their spouses lose their ability to work. The administration also is considering an overhaul of what jobs qualify as “specialty occupations” under the H-1B visa program, likely continuing what’s already been a more restrictive view of the temporary visa program. And the immigrant investor program could see an overhaul, funneling more investment to rural areas and upping the investment amounts needed to qualify.

The bulk of the regulations will be in the proposal stage, allowing employers and other interested parties the chance to comment before they’re finalized.

For much of 2018, U.S. Citizenship and Immigration Services has promised regulations overhauling both temporary and permanent employment visa programs. It appears that the bottleneck holding up those regulations has now cleared, allowing the agency to go forward.

A proposed regulation to curtail immigrants’ ability to obtain visas if they obtain public assistance was released Sept. 22. The “public charge rule” was a top priority for the USCIS, sources with knowledge of the matter told Bloomberg Law.

Now that the public assistance proposal is complete, the other promised regulations are soon to follow, they said.

‘Busy Period’ for USCIS

“We are entering a busy period for USCIS,” Lynden Melmed of Berry, Appleman & Leiden in Washington told Bloomberg Law Sept. 21.

Regulations to overhaul the EB-5 immigrant investor program “is in the on-deck circle, and we could see a proposal to modify the H-1B lottery before the end of the year,” said Melmed, who served as chief counsel of the USCIS in the Bush administration.

A representative for the USCIS couldn’t be reached for comment.

The agency’s regulatory agenda “is very ambitious,” Betsy Lawrence, director of government relations for the American Immigration Lawyers Association, told Bloomberg Law Sept. 24. “We haven’t really seen anything to this extent in recent years in terms of the volume of different employment-based immigration programs” covered by the planned regulations, she said.

Investor Program Rules Finalized?

An EB-5 investor program regulation is in its final stage after having been proposed in early 2017. The program is up for renewal this month in Congress as part of the government funding process.

The program awards green cards to foreign nationals who invest $1 million in a commercial enterprise that creates at least 10 U.S. jobs. If the project is located in a rural area or “targeted employment area"—an area with high unemployment—the minimum investment is $500,000.

The new proposal would increase those minimum investment amounts and redefine “targeted employment area” to funnel more investments into rural areas. It also would add certain anti-fraud measures.

Congress has been wrangling with similar changes to the program but has been unable to reach agreement on anything other than legislation to allow it to continue as is. In April, Sens. Charles Grassley (R-Iowa) and Patrick Leahy (D-Vt.) and Rep. Bob Goodlatte (R-Va.) asked that the USCIS finalize the regulations because of the political inability to modify the EB-5 program legislatively.

Grassley and Leahy also have called for the program to be abolished if changes can’t be made.

Spousal Work Permits

A proposal to rescind work permits for the spouses of H-1B guestworkers who are waiting for green cards is also likely to come out before the new year. The Department of Homeland Security told a federal appeals court Sept. 21 that it plans to release a plan within the next three months.

The proposal originally was set to come out in February but was delayed because of the USCIS’ need to redo its economic analysis.

A group of U.S. information technology workers has been pushing the court to hear their argument that the agency didn’t have the authority to issue the current regulation, released in 2015.

The H-1B lottery proposal would create a pre-registration program for employers seeking H-1B skilled guestworker visas that are subject to the annual cap. A similar proposal was floated in 2011 but was never finalized.

The USCIS currently holds a lottery every year for H-1B visas because demand continues to outstrip supply. Under the proposed regulation, registered employers only would have to send in H-1B petitions if they already know they’ve been selected.

Currently, all employers that want to hire H-1B workers have to send in complete petition packages. They are informed afterward whether or not their petitions were selected in the lottery.

Lawrence, however, said AILA had two main concerns with the 2011 proposal: that employers would register for workers they might not necessarily need later in the year, and that the registration process would allow employers to be included even if the worker isn’t eligible for the visa.

The organization will check the new proposal to see if those concerns have been addressed, she said.

H-1B Overhaul

Also with respect to the H-1B program, the agency is planning a proposed rule “to increase focus on obtaining the best and the brightest foreign nationals” by redefining the eligibility criteria as well as what counts as an “employer-employee relationship.”

What the USCIS can do in this area is a question of “what can they change through memos and policies, what has to be changed through the Federal Register, and what requires Congress,” AILA President Anastasia Tonello told Bloomberg Law Sept. 24.

A new regulatory definition of “specialty occupation"—the main criterion for an H-1B—can’t stray too far from what’s in the Immigration and Nationality Act, said Tonello, who practices with Laura Devine Attorneys in New York.

The proposal promises to be a continuation of a more restrictive view of the temporary visa program that the USCIS has been taking in a series of policy memorandums. The agency, along with other agencies that handle immigration, has been directed by an executive order to find ways to administer the H-1B program to ensure that U.S. workers won’t be displaced.

They include a policy requiring staffing companies to include with their H-1B visa petitions the full itinerary of where workers will be placed during the entire three-year span of the visa. The USCIS also issued a policy stating that computer programmers aren’t automatically considered eligible for the visas.

More generally, the USCIS also has issued a policy allowing officers to deny petitions without first seeking additional evidence as well as a policy that officers aren’t required to defer to prior decisions when determining whether to grant a deny a particular petition.

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