USCIS Announces Regulatory Plans for H-4 Employment Authorization and H-1B Visas

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An April 4, 2018 letter from USCIS Director L. Francis Cissna to Senator Charles Grassley came to light this week. Director Cissna responds to the White House’s “Buy American and Hire American” Executive Oder from April 18, 2017, which called for agency heads to “suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.” With one exception, the letter reflects the consistently obtuse and misguided approach the Administration has taken on immigration.

In the letter, Director Cissna mentions three regulatory proposals that are among USCIS’ current plans. Taking a generous view, the proposals represent one step forward and two back. The one that appears to be neutral, or perhaps an improvement, concerns implementing an electronic registration system for the annual H-1B lottery system. The letter did not discuss details, but previous efforts provided a broad outline of how the system would work. Rather than having employers inundate USCIS mail rooms with petitions, which USCIS must sort, assign tracking numbers to, and enter into a computerized lottery, employers would register online before the April 1 filing date. USCIS would conduct the lottery and instruct only the selected employers to submit petitions.

The other two regulatory proposals are bad news. The first one is a plan to eliminate the current eligibility of certain H-4 dependent spouses that allows them to obtain employment authorization. (H-4 is the status for a spouse who accompanies an H-1B worker to the United States and may remain here while the H-1B spouse is working.) The current rule, from 2015, allows H-4 spouses to obtain employment authorization while waiting to apply for lawful permanent resident status, i.e. a green card, as derivatives to their spouse’s green card process. With the green card process taking up to 20 years or more in some cases, having work authorization allows H-4 spouses to pursue careers or part-time employment and thereby contribute to the economy.

The second regulatory plan takes a more direct aim at H-1B visas. USCIS proposes changing the definition of “specialty occupation” (now defined as a job that requires at least a bachelor’s degree or the equivalent in a specific field) “to increase focus on obtaining the best and brightest foreign nationals via the H-1B program,” re-defining employment and the employer-employee relationship, and including “additional requirements designed to ensure employers pay appropriate wages to H-1B visa holders.” Although USCIS often misconstrues the current statutory and regulatory scheme, the laws at least are designed to provide a certain degree of objectivity. Introducing a subjective “best and brightest” test for visa eligibility is inappropriate and no doubt would lead to inconsistent and arbitrary petition adjudications, well beyond what employers already experience. Aside from this new subjective approach, the current H-1B visa program is far from perfect, but it indeed already contains numerous provisions addressing employer-employee relationships and wage compliance.

Just like much of what comes out of the White House concerning immigration, the two ‘bad news’ proposals are uninformed and ill-conceived. The only potential saving grace here is time. Nothing happens overnight in Washington. USCIS first must prepare and publish the proposed regulations. There then would be a public comment period. After reviewing the comments, USCIS would publish a final rule with an effective date. It’s difficult to predict if or on what timeline this may occur, but before it does, act now to contact your Representative and Senators and ask them to pursue comprehensive immigration reform that will allow employers to recruit and retain the talent they need, reduce unacceptable backlogs, and provide a path to citizenship for undocumented immigrants.

In the meantime, because the President himself does not read, perhaps someone in the White House can turn off the cable news and read to him the ending of the inscription on the Statue of Liberty:

“….

Keep, ancient lands, your storied pomp!” cries she

With silent lips. “Give me your tired, your poor,

Your huddled masses yearning to breathe free,

The wretched refuse of your teeming shore.

Send these, the homeless, tempest-tost to me,

I lift my lamp beside the golden door!”

There’s nothing in there about “most-skilled,” “highest-paid,” or the “best and the brightest.” This country is about the great things you do once you are here. We need to continue to be a welcoming nation of immigrants. Let’s remind our elected officials of this important truth.