Administration’s Regulatory Agenda Signals Continued Push to Align Visa Programs With “Hire American” Goals

On December 14, 2017, the Office of Information and Regulatory Affairs (OIRA) released the Fall 2017 Unified Agenda of Regulatory and Deregulatory Actions, which is a report on the rulemaking efforts U.S. administrative agencies intend to pursue in the near- and long-term.

If enacted, several items in the agenda have the potential to impact employers’ immigration programs. The relevant proposals include the following items:

• U. S. Citizenship and Immigration Services (USCIS) is proposing to issue a rule that would eliminate the ability of certain H-4 spouses to obtain employment authorization documents (EADs).
• USCIS is proposing to issue a rule (originally introduced in 2011) that would establish an electronic registration system for H-1B petitions that are subject to the annual quota (H-1B cap filings). DHS notes that the rule is “intended to allow USCIS to more efficiently manage the intake and lottery process” for these petitions. USCIS notes that this rule may include a provision for a modified selection process, as outlined in the Buy American and Hire American Executive Order, such that “H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.”
• USCIS is proposing to issue a rule that would revise the definitions of “specialty occupation,” “employment,” and “employer-employee relationship” in the H-1B context. USCIS notes that the purpose of these changes would be to “ensure that H-1B visas are awarded only to individuals who will be working in a job which meets the statutory definition for [H-1B eligibility].” The rule may also contain provisions regarding the payment of appropriate wages to H-1B visa holders.
• The Department of State is proposing and finalizing several rules that would enact various modifications to the exchange visitor (J-1) program. These changes include arrangements relating to the administration of the J-1 program, provisions to help ensure the safety and well-being of foreign nationals who enter the U.S. as exchange visitors, and efforts to reinforce the cultural exchange and public diplomacy aspects of the program. Changes may also include an expansion of the types of jobs that are prohibited under the summer work travel category.
• As a “long term action,” U.S. Customs and Border Protection (CBP) is proposing a rule that would clarify the criteria for admission to the United States as a temporary visitor for business (B-1) or pleasure (B-2). CBP also notes that the proposed revisions would “make the criteria [for entry as a temporary visitor] more transparent.”
• Immigration and Customs Enforcement (ICE) is proposing to issue a rule that would effectuate a comprehensive reform of the practical training options (OPT) available to nonimmigrant students. The proposed provisions include increased oversight over the schools and students participating in the program. The stated purpose is to “improve protections of U.S. workers who may be negatively impacted by employment of nonimmigrant students.”

Employers may want to keep in mind that although the abstracts listed in the agenda seemingly have the potential to impact many areas of the immigration system, it is premature to draw conclusions about the effect of these proposed changes without first seeing the text of the rules themselves—none of which have been released, and some of which may not even be drafted. Additionally, both the agenda itself and the timing for the rules, are aspirational; in prior years, only a select number of proposals have actually turned into rules, and ever fewer have actually followed the stated timelines. As noted previously, for example, a proposed regulation on the electronic registration system for H-1B quota petitions was originally introduced in 2011, but no further action occurred.

Should a proposed rule actually be issued, the agencies must conform to the notice-and-comment protocols of the Administrative Procedure Act. Effectively, this requires the agency to issue a proposed rule that explains the agency’s plan to accomplish a certain goal or address a problem.  This is followed by a comment period, during which time any interested parties can submit comments about the proposed rule. Prior to issuing the final rule, the agency must review all comments and indicate its reasoning for either modifying the rule on account of a comment or explain why the proposed comment does not merit a revision to the rule. Rulemaking is typically a prolonged process that takes a minimum of several months to accomplish. In other words, a proposed rule (which is different than most of the abstracts found in this agenda, which only state the intent to issue a rule) would be the first step in what could be a complex and lengthy rulemaking process that may take many months before promulgation of any final rule.

Finally, employers may want to take note that many of the administration’s prior attempts to enact changes to the immigration system have been subject to lengthy and robust legal challenges. Any such litigation on a proposed rule could increase the timeline for implementation, assuming the rule survives the legal challenge at all.

In summary, although the agenda provides some insight into the goals of the administration on employment-based immigration, the publication of the agenda itself does not alter the status quo.

Ogletree Deakins’ Immigration Practice Group will continue to monitor developments and post updates with respect to the administration’s regulatory agenda.