The Department of Homeland Security’s latest Regulatory Agenda promises some big changes, especially for the H-1B visa program.

Many of these changes have been proposed before, but have not yet made it to the rulemaking stage.

Among what to expect are the following:

  1. USCIS is planning to release a notice of proposed rulemaking to create a registration requirement for those seeking H-1B cap-subject petitions. The upside is that employers would have to file full petitions only if the case they register “wins” in the annual lottery. The downside is that it is not yet clear how USCIS will decide which cases should be accepted. In keeping with the “Buy American, Hire American” executive order and President Donald Trump’s focus on the “best and brightest,” the lottery may no longer be random. Petitions may be selected hierarchically, with individuals having the most advanced degrees and highest salaries at the top of the list. There is also the possibility that USCIS will decide how many applications to accept from any particular company, which likely will reduce the number of H-1Bs awarded to outsourcing and staffing companies.
  2. USCIS expects to finally release the notice of proposed rulemaking to eliminate H-4 employment authorization documents (EADs) in November. At that time, questions about whether those who currently have H-4 EADs will be able to continue to renew their work authorization will likely be answered. This has been a destabilizing issue for the many spouses of H-1B visa holders, primarily Indian nationals, who have been eligible for H-4 EADs since 2015. Approximately 90,000 spouses currently hold H-4 EADs.
  3. By August 2019, post-H-1B cap filings, USCIS plans to move forward with a rule (“Strengthening the H-1B Nonimmigrant Visa Classification Program”) that would enshrine new definitions of the terms “specialty occupation,” “employment,” and “employer-employee relationship.” USCIS’s definitions (or, at least, hints of them) have already been seen in guidance that has been issued and in Requests for Evidence regarding and denials of H-1B petitions.

Other expected proposed notices of rulemaking include:

  1. Updating the USCIS fee schedule (February 2019)
  2. Mandating electronic submission for all immigration benefit requests (April 2019)
  3. Limiting access to the USCIS Administrative Appeals Office (AAO) for appeals (April 2019)
  4. Eliminating concurrent filings of I-140 petitions and I-485 applications (September 2019)
  5. Updating recruitment requirements for the H-2A and H-2B programs (October 2018), and modernizing the H-2A labor certification process (December 2018)
  6. Raising investment levels and curtailing the designation of Targeting Employment Areas for the EB-5 program (November 2018)
  7. Initiating process changes for EB-5 Regional Center applications (March 2019)
  8. Increasing monitoring of the EB-5 Program (September 2019)

We will continue to keep you updated on these and other new proposals.

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Photo of Forrest G. Read IV Forrest G. Read IV

Forrest Read is a Principal in the Raleigh, North Carolina, office of Jackson Lewis P.C. He has extensive experience in both business immigration law and employment law and has particular focus in legal issues in graduate medical education (GME).

Mr. Read’s immigration practice…

Forrest Read is a Principal in the Raleigh, North Carolina, office of Jackson Lewis P.C. He has extensive experience in both business immigration law and employment law and has particular focus in legal issues in graduate medical education (GME).

Mr. Read’s immigration practice focuses on assisting employers in obtaining employment-based nonimmigrant visas (e.g., H-1B, L, O, TN) for foreign national employees and work-related immigrant (green card) visas, including PERM Labor Certifications, and advising employers on compliance with U.S. immigration laws and regulations. He has broad experience in advising large, mid-size and small employers on their various immigration needs and developing strategies to help them navigate through complex immigration issues. He also has particular experience in counseling employers in the health care industry and addressing immigration-related issues that arise for their broad range of health care professional employees (including advising on and obtaining employment authorization for medical residents and fellows and obtaining J-1 visa waivers for foreign national physicians completing their medical training in the United States). His immigration practice also includes defending employers in connection with Department of Labor H-1B and H-2B investigations.

Mr. Read’s employment law experience includes representing management, particularly academic medical centers in the GME context, in a wide array of workplace disputes and litigation before federal and state courts and administrative agencies, including matters related to discrimination, retaliation, harassment, disability, family and medical leave, various wage and hour issues, contracts, and intentional torts. He advises academic medical centers on the interplay between applicable academic law and employment law and the ramifications of what are divergent legal requirements and standards. Mr. Read also provides counsel with respect to the legal impact of competency standards for residents and trainees in GME, including situations involving discipline, remediation, and dismissal. He provides advice and guidance in the peer review process, including provision of verification and assessment of training in response to third party inquiries.

As a member of the Firm’s Corporate Diversity Counseling group, Mr. Read also has experience in providing assessments and making recommendations to corporate and institutional clients with respect to diversity and inclusion policies and initiatives, conducting related internal investigations, and shaping, developing and enforcing effective policies and initiatives to ensure consistency with client values and in furtherance of business goals and objectives.