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Administration Planning Major Changes to Employment-Based Immigration

executive orderIt appears that the White House is quietly gearing up to promulgate regulations that will have major effects on employment-based immigration. The Office of Management and Budget (OMB) houses a separate governmental entity called the Office of Information and Regulatory Affairs (OIRA).  The OIRA publishes updated lists of the rulemaking activities of federal agencies in an effort to provide the public with more transparency regarding what the government is planning to do in the upcoming months.

The OIRA’s most recently published list includes several new rules that are under consideration, which include a rule that would eliminate the H-4 EAD program, a rule that would redefine “specialty occupation” and employer-employee relationship” as these terms pertain to H-1B petitions, and a rule that would change the Optional Practical Training (OPT) employment authorization program for foreign national students who hold F-1 status.

Proposed Elimination of the H-4 EAD Program

President Trump seems bound and determined to end this highly successful and economically advantageous program.  The H-4 EAD program, which was promulgated under President Obama, allows the spouses of H-1B visa holders to obtain work authorization if their spouse has reached a certain milestone in the green card process.  Thousands of H-4 visa holders have obtained work authorization, and many of them have used their new authorization to open companies that employ U.S. workers.  The fact that the administration wants to end this program just further underscores its commitment to jeopardizing the U.S. workforce and economy in the name of political posturing.

Redefining the H-1B Requirements

The White House also wants to toughen the standards for the H-1B visa, which is used by hundreds of U.S. companies to attract and retain foreign talent.  The proposed rule on the H-1B category, called “Strengthening the H-1B Nonimmigrant Visa Classification Program,” will redefine specialty occupation and what it means to have an employer-employee relationship.  No additional details have been provided to date, but these two “redefinitions” will undoubtedly make it harder for talented foreign national workers to get legal status and bring their knowledge and skills to U.S. businesses.

Possible Changes to OPT EAD

The announcement also indicated that the OPT and CPT programs are on shaky ground as well.  These programs allow foreign national students to obtain valuable workplace skills either at the conclusion of their degree program (OPT) or as part and parcel of their program (CPT).  It is not clear if the White House intends to do away with the program completely or to make some sort of fundamental change to it.

The Silver Lining

The silver lining to this dark cloud is that for any of these rules to move forward and become regulations, they must first be published in the Federal Register to allow interested stakeholders to provide their comments.  The agency promulgating the rule must review the comments and take them into consideration, a process that normally takes many months because the comments receive responses and that can often significantly change the form of the rule.  No rule goes into effect until it is published in the Federal Register as a “final rule,” which is a process that can take months or even years.

The Rant

Congress and the current administration must recognize that employers are best able to determine their skills and workforce needs, not bureaucrats driving a points-based system. The current employment-based green card preference system is an effective framework for identifying and prioritizing the best-qualified talent for employers.

Additional Blog Posts:

The Government’s War on H-1Bs, ImmigRantings, October 11, 2012

Obama Signs Immigration Policy Memo, ImmigRantings, June 15, 2012

Problems with the H-1B visa: From Work Horse to Show Pony, ImmigRantings, February 13, 2012