H-1B Visas Under Scrutiny with Several Rulemaking Proposals Expected in Coming Months

October 19, 2018

The Trump administration looks to tighten the screws on the H-1B visa program based on its just-released fall regulatory agenda, with proposals to ensure more H-1B visa holders have U.S. advanced degrees and to revoke employment authorization from spouses of H-1B workers scheduled for publication this year.

The Trump administration projects a 15 percent increase in H-1B visa holders with U.S. advanced degrees among the 85,000 visas offered each year as a result of the changes it plans to propose to the H-1B lottery system.

Looking to 2019:  The USCIS regulatory agenda sets forth additional proposals focused on H-1Bs set to be published for comment next year, including:

  • Revising the definitions of “specialty occupation,” “employment,” and “employer-employee relationship;” and

  • Imposing requirements “designed to ensure employers pay appropriate wages to H-1B visa holders.”

On H-2Bs and H-2As:  The regulatory agenda also includes vague proposals for “necessary improvements to modernize regulatory requirements for employer recruitment of U.S. workers” when seeking H-2B (service) or H-2A (agricultural) workers.

Silver lining?  Despite the expected proposed regulations, U.S. Citizenship and Immigration Services (USCIS) Director Francis Cissna said that his top priority is moving to a completely electronic visa application system, which he hopes will make the process simpler for employers.

Not so fast:  USCIS has been accused of shortening the approval durations of H-1B visas by incredible margins.  A lawsuit by an IT advocacy group representing over 1,000 tech companies alleges, "These petitions are often valid for only months or days at a time, and some cases are expired by the time the approval is received.”