It has been crazy last couple of weeks as many are in panic mode as the H4 EAD Lawsuit leading to H4 EAD removal/ revoke agenda item in DHS Fall 2017 Regulatory Agenda that was published on Dec 14th, 2017. Besides, there are few more H1B visa related regulations, including changes to CPT/ OPT programs that are in proposed state that are part of the regulatory agenda set forth by the president Trump administration. We will cover summary of all of these details and impact. Also, some unofficial news at the end.
Fall 2017 Regulatory Agenda Items on H1B, CPT/OPT, H4 Visa EAD, Fee
Let’s look at each of the items in the Fall 2017 Regulatory agenda by DHS & Trump Administration by visa type. We will look at these by visa category and look their status, including potential impact. Each of the agenda items have an official title, expected publication date and they are published in RegInfo.gov. Below are all these details and official link to the same.
H1B Visa Program Changes – Lottery Changes, Pre-registration:
|Official Title of Rule : “Registration Requirement for Petitioners Seeking To File H-1B Petitions on Behalf of Aliens Subject to Numerical Limitations”|
|Summary : DHS is planning to revive its original 2011 regulation H1B Visa Cap Registration proposing this agenda item as they have seen excessive amount of demand for the H1B workers that is more than the numeric limitation. The goal of this rule is to properly manage the process of accepting applications and lottery process. They suggest that the rule may include change in selection process as per the Buy American, Hire American Executive Order by Trump . H1Bs could be potentially awarded to most skilled or highest paid candidates in H1B pool. DHS says that with pre-registration process and up-front cap selection process, it will reduce the extra burden and upfront cost for employer as only the ones given a cap number can prepare and file H1B petition.|
|Expected Publication Date : February 2018 ( for NPRM – Notice of Proposed Rule Making||Official Rule Link : Reginfo.gov –H1B Pre-registration Rule|
|Current Status & Impact : This rule of pre-registration has been discussed in the past but never went far. It will be interesting to see, how they will amend this rule. The goal of DHS it says is to allocate the H1B cap numbers to the best and brightest, no details are out yet on this. While we have few more H1B Visa Bills from Trump Administration that are being discussed in Senate that are planning on increasing the wage rate, etc., we are not sure, if they will make it to the rule making as the tentative timeline is given as February 2018. We will have to wait and see, if something passes in senate and get signed by president before that and becomes a rule for H1B Visa 2019 Season. If it really passes as planned, we may see big impact on how the H1B program works and lottery selection.|
|Official Title of Rule: “Strengthening the H-1B Non-immigrant Visa Classification Program”|
|Summary : DHS wants to change the definition of the H1B visa program to get the best and brightest talent from foreign countries. As they have noticed abuse of the H1B program around employer-employee relationship, classification of a H1B job, they want to make some changes so that US workers are protected and additional requirements for paying well for H1B holders. DHS wants to ensure all the policies are in-line with their recent Trump executive order of “Buy American and Hire American”. They want to make sure US workers are protected and H1B holders will only supplement US work force. There may be some changes to fees and extra paper work as per USCIS|
|Expected Publication Date : October 2018||Official Rule Link : Reginfo.gov – H1B Definition Change|
|Current Status & Impact : This rule is planned for later part of the year and there may not be immediate changes or impact that we can see in the first half of 2018. The rules that are in process in Senate, if any of them pass, they could be included in this change. DHS is very clear on reducing fraud and getting the best and brightest. They may increase fees, more paperwork so that it becomes difficult to commit abuse of the program and do not replace US workers. Depending on the things proposed in the rule, it could have a huge impact on the H1B visa program and for all the outsourcing and IT body shop companies.|
H4 Visa EAD Removal Proposal by USCIS
|Official Title of Rule: “Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization”|
|Summary : DHS clearly tells that it proposed H4 EAD rule for certain eligible H1B spouses who are in process of Green Card in 2015 and now they want to amend/ change that published final rule to remove that EAD eligibility for certain H4 spouses. The primary reason DHS says for the plan to remove H4 EAD is the recently signed President Trump’s Executive Order “Buy American and Hire American” . It states that the DHS Secretary has authority to do as per INA regulations. They say the two potential impacts would be one to employers who have H4 EAD’s employed in the form of labor turnover costs and other is general cost savings ( DHS/ US Economy ??) that would add up by not filing future H4 EADs.|
|Expected Publication Date : February 2018||Official Rule Link : RegInfo H4 EAD Removal|
|Current Status & Impact : This is probably the most discussed item from Fall 2017 agenda. If you look at the comments on H4 EAD Lawsuit page , you can see some intense arguments. Nevertheless, if USCIS takes this forward, it will not have any immediate impact for current H4 EAD holders. Usually, they do not remove EAD just like that as it will impact current businesses, who employ EAD holders. They will give some time for employers and current EAD holders to adjust by phasing out the expiry. If this passes, it will impact the future H4 holders who have dreams to work on H4. As of now, nothing changes, you can file for EAD, if you are eligible. We will keep you posted on the updates on the blog.|
F1 Visa Students – OPT, CPT Changes to Stop abuse and protect US workers
|Official Title of Rule : “Practical Training Reform“|
|Summary : This rule is proposed to address the abuse of the CPT and OPT Work Options by F visa and M visa students that is impacting the American workers. ICE is planned to do some big changes to reduce the fraud in this program. The proposed changes are to be in-line to protect US workers jobs and not displace them. ICE is expected to propose rules like increase of the oversight by the schools and ensure there is compliance of the program. They says that there will be extra costs involved for the schools, ICE and students, but the outcome is to avoid fraud and protect the integrity of the program.|
|Expected Publication Date : October 2018||Official Rule Link : RegInfo.gov – CPT OPT Changes|
|Current Status & Impact : Nothing changes as of today and there is no immediate impact. It is too early to speculate on what impact would be here. There are definitely schools that are primarily degree mills, which are abusing these programs. Also, with the 24 Month OPT rule, some employers are using this as a bridge for employment and impact US workers, that’s the concern. We can expect some extra oversight rules that may kick-in that could make it harder for the abuse of the program and more overhead for the schools. We will have to wait and see.|
H1B Visa, EAD and other Application Fee increases by USCIS
|Official Title of Rule : “U.S. Citizenship and Immigration Services Fee Schedule”|
|Summary : Basically, USCIS go through fees revisions for making sure they cover their costs. While it does not really tell that there will be fee increase, but usually such reviews come up with fee increases|
|Expected Publication Date : October 2018||Official Rule Link : USCIS Fee Review|
|Current Status & Impact : With the increase scrutiny and other process in place to avoid fraud, we can expect the overheads for the USCIS to be high and could potentially result in increase of the Fee for H1B, H4 and other EAD programs. We have to wait and see, but it quite possible for fee increase.|
December 31st 2017 ( Unofficial News ) : It has been covered by one of the news agencies that DHS is looking at eliminating the extension of H1B beyond 6 years. Currently, H1B holders can extend their status beyond 6 years, if their Green Card process is going on and in pending state. With the President Trump’s Buy American and Hire American Policy, they are looking at ways to cut down the H1B workers’ extensions after 6 years, despite their GC status. Again, this is very much a developing news and there are not many details besides one news article. You can read it at DHS 6 Year H1B Extension news
What do you think of these proposed changes to H4, H1B, F1 students ? Your thoughts ?
Hi, one of the US based consultancy had cheated me by taking money for filing H1, my petition got picked in lottery and got RFE, now consultancy is not responding to clear the RFE and seems they withdraw my petition. Owner is from India and living in the USA & I am in India. Please suggest me how can I file a complaint on the owner. I have the proofs as well.
Eliminating H1B extensions and potentially all H1s eventually is probably a way to pave the way to RAISE act. If RAISE is approved, how will H1s maintain status here while they apply for GC?
Hopefully USCIS will introduce H1b rule as an interim final rule so that it could appliy to 2019 season
Seems like they are even planning to change the interpretation of existing law for issuing H1B extension beyond 6 years for those who with I140.