January 19, 2018
With a new year come new challenges to immigration programs and benefits from the Trump Administration. At the close of 2017, the Executive Branch published its regulatory priorities for 2018, including a number of significant proposed changes to USCIS rules and programs. There have also been recent news stories concerning rumored potential changes. Following is a breakdown of the changes most likely to impact our clients if they are implemented.

Three-Year H-1B Extensions under AC21

In the first days of January, several news outlets (such as The Washington Examiner) reported that the Department of Homeland Security (DHS) was considering new regulations which would limit the ability of H-1B workers to continue to extend their status while waiting to complete the permanent residence process.  Currently, under the American Competitiveness in the Twenty-First Century Act (AC21) Section 104(c), H-1B workers with approved I-140 petitions whose priority dates for permanent residence are retrogressed, are eligible to extend their H-1B status in three-year increments until their priority dates become current. The vast majority of Indian and Chinese H-1B workers use these three-year extensions to remain and work in the United States while waiting up to 12 years for permanent residence. DHS reportedly sought to tighten or eliminate eligibility for these extensions because the statutory language of 104(c) read that DHS "may grant" the extensions, meaning they could exercise discretion in denying them. Conversely, Section 106(a) of AC21 states that DHS "shall extend" H-1B status in one-year increments to employees whose PERM labor certification or I-140 petition was filed more than 365 days prior. Therefore, while DHS identified their discretion to deny three-year H-1B extensions, the mandatory "shall" in Section 106(a) would obligate them to permit one-year H-1B extensions for employees waiting for permanent residence.

However, the reports of these changes, based upon anonymous sources, appear to be unfounded. On January 8, the same news service which reported the possible elimination of three-year H-1B extensions, reported that USCIS confirmed it is not considering such changes. USCIS stated that it is not considering changing its interpretation of AC21 Section 104(c) and acknowledged that eliminating three-year H-1B extensions would have little impact because workers would remain eligible for one-year extensions under Section 106(a).

End of H-4 Work Authorization

Beginning in May 2015, USCIS extended work authorization eligibility to certain spouses of H-1B workers. The new rule permitted the spouses of H-1B workers with approved I-140 petitions and retrogressed priority dates (largely Indian and Chinese nationals) to apply for Employment Authorization Documents (EAD cards) which would give them general work authorization for any employer.

USCIS has now published its priority to remove H-4 dependent spouses from those eligible to apply for EAD cards, effectively rescinding the 2015 rule. February 2018 has been set as the target timeframe for opening the rulemaking process. The availability of EADs for H-4 spouses has been challenged since 2015, when a U.S. workers' organization 'Save Jobs USA' filed a lawsuit against DHS claiming that DHS lacked the authority to grant EADs to H-4 nonimmigrants. The lawsuit was initially dismissed in federal district court and is now awaiting review by the U.S. Court of Appeals for the D.C. Circuit. Throughout 2017, the Trump Administration continually requested stays and abeyances for review of the lawsuit in order to align its policies on the issue. A final appellate decision on the lawsuit is anticipated this month.

Whether through rulemaking or legal proceedings, RSST Law Group anticipates that termination of H-4 EADs will become effective in 2018. There is no further available information on how such a change will affect already approved EADs, or those which are pending at the time a final rule is implemented.

Rescission of International Entrepreneurship Rule

In January 2017, USCIS published a new rule to help international entrepreneurs work in the U.S. for up to five years as 'parolees'. Previously, foreign business founders were required to seek admission and work authorization in the U.S. under an existing visa category such as L-1A or E-2. The new rule allows international entrepreneurs the simpler option of seeking parole rather than visa status if they meet certain criteria.

The rule had an original effective date of July 17, 2017. On July 11, 2017, DHS sought to delay the effective date until March 2018.  While a lower court stayed implementation for a time, that decision was overturned by the U.S. District Court for the District of Columbia in December 2017. Therefore, the rule is currently in effect and advance parole applications for international entrepreneurs are being accepted. However, as anticipated, USCIS has proposed to rescind the new rule in 2018. Ongoing rulemaking remains pending review with the Office of Management and Budget.

Other USCIS Proposed Changes for 2018
  • Implementing an employer pre-registration system for the H-1B cap. There is a proposal to establish an electronic registration program for cap-subject H-1B petitioning employers in order to more efficiently manage the H-1B cap lottery and provide more predictability for both employers and USCIS (rulemaking to begin in February 2018).  
  • Revising the definitions of "specialty occupation," "employment," and "employer-employee relationship" for H-1B petitions in order to retain the 'best and brightest foreign nationals' and reduce abuses of the H-1B program (rulemaking to begin in October 2018).
  • Revising the USCIS filing fee schedule (rulemaking to begin in October 2018).
Additional Legislative and Immigration-related Changes of Note
  • DACA, the Diversity Visa Lottery, and "Chain Migration":  Since President Trump eliminated the Deferred Action through Childhood Arrivals (DACA) program in September, it is up to Congress to enact new legislation to protect the "Dreamers".  Talks between the House, Senate, and White House have proposed that such legislation include elimination of the Diversity Visa Lottery, which allows 50,000 immigrant visas to be issued annually to randomly-selected applicants from around the world.  Also proposed are limitations on "chain migration", at least for DACA recipients.  "Chain migration" references the ability of immigrants to petition for family members once they become permanent residents or U.S. citizens.  However, the situation in Washington remains very unpredictable, so there is no way to know what will ultimately be included in any potential DACA deal until the legislation passes.
  • Termination of TPS:  The Secretary of Homeland Security is authorized to designate a foreign country for Temporary Protected Status (TPS) based on conditions in the country that temporarily prevent their nationals from returning safely, such as armed conflict or environmental disasters.  TPS beneficiaries are allowed to remain in the U.S. and can obtain work authorization; they may also be able to obtain travel authorization.  For many years, TPS has allowed hundreds of thousands of individuals to remain safely in the U.S.  The Trump Administration has already rescinded grants of TPS for Sudan (valid November 1997 thru November 2018), Nicaragua (valid January 1999 thru January 2019), Haiti (valid January 2010 thru July 2019), and El Salvador (valid March 2001 thru September 2019).  Individuals in the U.S. on TPS from those countries will need to depart the U.S. prior to the expiration of their current TPS unless they are eligible for (and obtain) another status in the U.S.
In addition to the proposed rulemaking changes, RSST Law Group anticipates that there will continue to be changes in policy and interpretation that do not require rulemaking. The Trump Administration's strategy for employment-based immigration has, in part, been to discard often decades-old policy and practice where the result is to narrow eligibility for benefits and increase administrative hurdles. This effort to redefine law and policy has resulted in an increase in Requests for Evidence (RFEs) and a slowdown of processing times. In this way, the Administration can clamp down on employment-based immigration without any formal rulemaking. The New York Times accurately outlines the current environment in a recent article. RSST Law Group will continue to monitor developments as they occur and will timely advise clients on the impacts of any changes. 
Please note that this News Flash is provided for informational purposes only.  It does not constitute legal advice and is not a substitute for consulting with an attorney.

The Attorneys at RSST Law Group