DHS Still Plans to Rescind H-4 Work Authorization

The agency’s 2019 agenda would redefine H-1B criteria, increase immigration fees

Roy Maurer By Roy Maurer June 10, 2019
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​The long-anticipated proposal to rescind employment authorization for the foreign spouses of H-1B workers could come any day now, according to the Trump administration's latest regulatory agenda.

The president's spring 2019 regulatory agenda for the Department of Homeland Security (DHS) outlines projected immigration policy for the rest of the year, including rules impacting the H-1B program, green card processing and filing fees.

"As DHS focuses on its regulatory agenda, SHRM [the Society for Human Resource Management] will have a particular interest in the permanent adoption of the Known Employer program; potential changes to the H-1B process; and other rules that impact employers' ability to recruit, hire and retain top global talent," said Nancy Hammer, SHRM-CP, vice president of regulatory affairs and judicial counsel for SHRM.

Agency agendas feature goals that are often postponed or never see the light of day. However, DHS is planning the following regulatory changes to employment visa programs in 2019.

[SHRM members-only toolkit: Understanding and Obtaining U.S. Employment Visas]

Rescission of H-4 Work Permits

The proposed rollback of work authorization for tens of thousands of H-4 visa holders—first expected more than a year ago—is currently under review at the White House Office of Management and Budget. The details of the proposed rule are not yet known.

In 2015, President Barack Obama's administration created a work permit for H-4 visa holders, H-1B workers' spouses—mostly women from India—who were approved for employment-based green cards. Supporters of the Obama rule say that the permit helps attract and retain skilled foreign workers to the United States. They point to the economic pressure that H-1B workers who are waiting for a green card—which can take over 10 years for an Indian national to receive—will feel to leave the country if their spouses can't legally work.

Critics of the rule argue that rescinding the work permits will help preserve more jobs for U.S. workers. DHS has also argued that the creation of the work permits was unlawful, because Congress had not explicitly allowed it, as it had other visa categories.

"From teachers to business owners, H-4 visa holders are making significant contributions to the U.S. economy, including creating jobs," said Tahmina Watson, an immigration attorney and owner of Seattle-based Watson Immigration Law. "Given the constriction of H-1B visa adjudications and high denial rates, such immigrants will be compelled to take their coveted skills to other parts of the world. If there were a mass departure of such skilled workers, the U.S. economy would absolutely feel the negative effects."

Reps. Anna Eshoo, D-Calif., and Zoe Lofgren, D-Calif., recently reintroduced a bill to protect H-4 work authorization.

H-1B Changes

U.S. Citizenship and Immigration Services (USCIS) plans to revise the definition of "specialty occupation" under the H-1B program in August. The rule is expected to redefine "employment" and "employer-employee relationship" and add requirements "designed to ensure employers pay appropriate wages to H-1B visa holders," according to the agency.

Washington, D.C.-based immigration attorney and Fragomen Worldwide managing partner Andrew Greenfield speculated that the new regulation could be the Trump administration's effort to codify USCIS adjudication polices issued over the last two years.

A new rule, for example, "may specifically point to Department of Labor [DOL] materials like the Occupational Outlook Handbook and O*NET and prescribe that only occupations recognized by the DOL as always, invariably requiring a degree in a specific course of study can be accepted as specialty occupations," he said.

The policies, emanating from the president's April 2017 Buy American and Hire American executive order, Greenfield said, have "made it more challenging for U.S. employers to sponsor H-1B workers."

He added that the rule may:

  • Impose a requirement that only jobs that are normally associated with a single college major instead of a broader list of fields of study are specialty occupations.  
  • Tie the definition of a specialty occupation to higher wages, with higher salaries creating the presumption that the job rises to the level of a specialty occupation.
  • Require more proof from employers demonstrating that there will be an employer-employee relationship between the employer and the worker during the entire period of requested employment at a third-party site. That proof could be in the form of contracts and letters from end-clients.

Green Card Processing

In September, USCIS is scheduled to propose a rule to change the way adjustment-of-status applications are processed. Adjustment of status is the process of changing from a temporary immigration status to permanent residence. The agency wants to eliminate the concurrent filing of adjustment-of-status applications with employment-based visa petitions, significantly impacting employment-based green card applicants. Workers eligible to file for adjustment of status would have to wait for their green card petitions to be approved before filing for adjustment of status.

"That could mean a period of several months," Greenfield said. "Ripple effects include the employee's dependents' delayed … work authorization, and the worker losing the flexibility to accept promotions or job changes internally or accept job offers from a different company."

The worker would also have to wait for approval to file for an employment authorization document but likely would have underlying work authorization already.

Fee Increases

A number of immigration-related fees for employers are expected to go up in 2019. USCIS intends to publish proposed fee increases in August, while the State Department intends to propose increased consular filing fees in July.

"The fee increases may be substantial, because petition and application numbers are down from previous years," said Sean Hanagan, an attorney in the White Plains, N.Y., office of Jackson Lewis.

In July, USCIS also plans to propose a filing fee for next year's H-1B cap registration program.

"The preregistration process was free under the original plan," Hanagan said. "In response to concerns that large companies would benefit most from free preregistration, as they would be able to increase the number of preregistrations that they file, DHS will propose adding a fee to the process. How large or small the fee actually is and which companies will benefit is yet to be seen."

Known Employer Program

DHS seeks to make permanent USCIS' Known Employer pilot program, which has been in effect since March 2016 and will run through May 2020. The program preapproves qualified employers that frequently hire foreign workers, saving time and paperwork for both the employers and the government.

"This change would promote simplicity and efficiency in the benefit application process for employers, while allowing USCIS to further protect benefit integrity and ensure consistency with respect to adjudications," the agency said.

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