DHS Plans to Propose Significant Changes to H-1B, H-4 and Practical Training Rules in 2018

Executive Summary

• According to its regulatory plan for 2018, the Department of Homeland Security is expected to propose rules that would impose stricter eligibility and cap selection criteria on H-1B employers, terminate the H-4 employment authorization program, and significantly revise the practical training program for foreign students.

• Regulations would not take effect until finalized, a process that normally takes at least several months.

In the coming months, the Department of Homeland Security plans to propose new regulations that, if finalized, would significantly affect the H-1B program, F-1 practical training, and H-4 employment authorization. DHS announced its plans in an update to its semi-annual regulatory agenda.

Forthcoming proposed rules

Highlights of DHS’s regulatory plans are below, along with the agency’s projected date for publication of each proposal.  The specifics of each proposed rule will remain confidential until published in the Federal Register.

• Termination of the H-4 employment authorization program.  As long expected, DHS will propose to rescind regulations that permit certain H-4 spouses to apply for employment authorization.  Anticipated publication date: February 2018.

• H-1B cap lottery pre-registration and selection.  DHS indicates that it may revive a 2011 proposed rule that would require H-1B petitioners to pre-register for the H-1B cap lottery and to submit cap petitions only after they have won cap numbers.  DHS also plans to propose a priority system for allocation of H-1B cap numbers, which would give priority to the most highly paid and highly skilled consistent with President Trump’s Buy American, Hire American executive order.  In the future, the agency could expand pre-registration to other nonimmigrant visa categories with numerical limitations.  Anticipated publication date:  February 2018.

• H-1B eligibility criteria and wage requirements.  DHS plans a revision of the definition of an 
  
  H-1B specialty occupation to “increase focus on obtaining the best and brightest foreign nationals.”  It plans to propose new definitions of employment and the employer-employee relationship in the H-1B context, for the purpose of protecting U.S. workers and wages. DHS may also seek changes to H-1B wage requirements.  Anticipated publication date:  October 2018.

• Changes to practical training for foreign students.  U.S. Immigration and Customs Enforcement plans to propose a comprehensive revision of practical training rules for F and M foreign students.  The proposal would increase protections for U.S. workers and oversight of schools and foreign students, which could mean additional employer obligations and possible restriction of optional practical training, the STEM OPT program and curricular practical training.  Anticipated publication date:  October 2018.

• Fee increases.  DHS is reviewing USCIS filing fees and may propose fee increases.  The agency is also planning to increase Student and Exchange Visitor Program fees.  Anticipated publication dates:  April 2018 (SEVP fees) and October 2018 (USCIS fees).

Looking ahead

DHS’s regulatory agenda does not have an immediate effect on current programs, but it is the clearest indication of the Trump Administration’s plans to restrict the H-1B, H-4 EAD and F-1 practical training programs in the future.  Organizations should take note of the forthcoming proposals when planning for future immigration needs.

In most cases, the agency is expected to publish proposed regulations through regular administrative procedures.  This would normally include a comment period to allow individuals and organizations to provide feedback, though a comment period is not guaranteed in all cases.  Proposed rules would not take effect until the agency completed the regulatory approval process, which normally takes several months or more.  The impact on filing procedures and adjudications in the FY 2019 H-1B cap season is not yet clear.  Employers should be prepared for the possibility of change, though this is by no means certain.

If your organization has questions about DHS’s rulemaking plans, please contact the immigration professional with whom you work at Fragomen. This alert is for informational purposes only.