United States: DHS Releases Its Spring 2018 Regulatory Agenda

• According to its regulatory plan for spring 2018, the Department of Homeland Security is expected to propose a rule that will clarify and possibly limit the criteria for B-1 and B-2 classification. • DHS is also expected to briefly delay its publication of draft rules that would impose stricter eligibility and cap selection criteria on H-1B employers and change regulations for the EB-5 program. • DHS has reiterated its intention to propose rules that would terminate the H-4 employment authorization program and significantly revise the practical training program for foreign students.

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May 10, 2018

The Department of Homeland Security (DHS) has released its spring 2018 regulatory agenda, reiterating plans announced last fall to propose new regulations, pushing back the projected publication dates for certain key proposed regulations, and adding additional areas for rulemaking. If finalized, these rules would significantly impact the B-1 and B-2 temporary visitor categories, the H-1B and EB-5 programs, F-1 practical training, and H-4 employment authorization.

The following summarizes key items on DHS’s spring 2018 agenda:

  • Criteria for B-1 or B-2 classification. DHS intends to propose a rule to clarify the criteria for B-1 or B-2 classification. This proposed regulation, which had initially been slated for publication during the Obama administration, could limit permissible business activities. The anticipated publication date is November 2018.
  • Termination of the H-4 employment authorization program. A proposal to rescind regulations that permit certain H-4 spouses to apply for employment authorization was originally slated for publication in February 2018. DHS later indicated it would publish the proposed rule in June 2018. The spring 2018 agenda reiterates the anticipated publication date of June 2018.
  • H-1B cap lottery pre-registration and selection. A proposal 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, originally slated for publication in February 2018, has an updated anticipated publication date of July 2018.
  • H-1B eligibility criteria and wage requirements. A proposal to revise the definition of an H-1B specialty occupation to “increase focus on obtaining the best and brightest foreign nationals,” originally slated for publication in October 2018, has an updated anticipated publication date of January 2019.
  • Fee increases. A proposed rule to increase Student and Exchange Visitor Program fees, originally slated for publication in April 2018, has an updated anticipated publication date of September 2018.
  • EB-5 Immigrant Investor Regional Center Program. A proposal to make regulatory changes to the EB-5 Regional Center Program, originally slated for publication in October 2018, has an updated anticipated publication date of March 2019.
  • EB-5 Modernization Rule. A proposal which could raise minimum investment amounts for the EB-5 program, among other changes, originally slated for publication in February 2018, has an updated anticipated publication date of August 2018.
  • Changes to practical training for foreign students. U.S. Immigration and Customs Enforcement maintains its plan to propose a comprehensive revision of practical training rules for F and M foreign students. The anticipated publication date remains October 2018.
  • Fee increases. As DHS previously stated, it intends to propose increases to USCIS filing fees. The anticipated publication date is October 2018.

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 continued 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.

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.

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