H-1Bs and H-4 EADs Under Trump: What’s Fact, What’s Fiction, and What’s Coming?

The past year or so has brought plenty of changes for those of us living in the employment-based immigration world. One year ago this April, the Trump administration published the Buy American, Hire American executive order. As immigration attorneys who practice employment-based immigration law, we have seen numerous changes in the way petitions are adjudicated in the last year. We have also fielded numerous emails and calls from clients anxious about upcoming changes they have heard about in the news, not all of which are true or accurate.

What Has Changed

  • USCIS has published a policy memo “clarifying” the documentation required for H-1B petitions where the beneficiary will be placed at client sites. This memo signals that USCIS will likely require more documentation going forward of the relationship with the end client, including but not limited to end client letters and contracts/work orders, not just between the petitioner and the middle vendor, but also between the middle vendor(s) and end clients.
  • USCIS continues to conduct administrative (FDNS) site visits for H-1B workers and is expanding that to L-1B petitions as well.
  • USCIS published a policy memo that instructs officers to no longer give deference to previously approved petitions, but instead to give them the same level of scrutiny as new filings.
  • RFE rates for H-1B petitions increased by 45% nationwide. Anecdotally, we have seen that RFEs are tougher and longer than they have been in the past.

What Has Not Changed

  • USCIS has not issued regulations changing any aspect of the H-1B program. The changes noted above have been made either through agency memo, or by them just doing it, with no written notice at all. (This is one reason that it can be so helpful to work with an attorney who practices extensively in the specific area of immigration law that you working with; many trends and policy changes are only apparent to attorneys who file specific types of immigration cases day in and day out. This is also why I refer out case types that I am not as familiar with.)
  • H-4 EADs are still available (but see below).
  • Prevailing wage amounts have not increased or changed, aside from the annual adjustments that happen each July.
  • It is still possible to have an H-1B approved, even without an RFE sometimes.
  • It is not necessary to move to Canada (at least not yet!).

What (Maybe) Is Coming

On April 4, 2018, Francis Cissna, USCIS Director, sent a letter to the Senate Judiciary Committee outlining the changes that the agency has already made in response to the BAHA Executive Order, and outlining changes that they are considering for the future. These proposed changes include the following:

  • A proposed rule to end the H-4 EAD program is forthcoming (we still do not have a specific timeline).
  • A proposed rule to establish “an electronic registration program” for the H-1B cap cases. Note that this suggestion has been floating around for several years now, and we haven’t seen a proposed rule on this yet. It may be coming though. At this time we have no information about what that would look like.
  • A proposed rule to “revise the definition of specialty occupation…to increase focus on obtaining the best and the brightest foreign nationals” as well as to revise the definition of “employer-employee relationship” Again, we do not have additional information right now as to what that proposed language would look like or how it would impact future filings. If/when we have additional information on that, we will certainly share it.

What Does This Mean For Me?

In short, the above means that:

  • A lot has changed in the employment-based immigration world, but not officially. It’s been done primarily through policy memos and processing trends.
  • It does look like the H-4 EAD program will end at some point in the future.
  • It’s possible that certain definitions that are key to the H-1B regulations will change, but we will have advance notice as well as a chance to comment on the proposed changes through the rule-making process.

In the meantime, my coping strategies will include lots of exercise, yoga, and my favorite iced tea. I am not a licensed counselor or therapist so I cannot give suggestions for you, but hang on tight – we’re in for a ride and we’re here to guide you through!

We are dedicated to continuing to represent employers, employees, families, and individuals in this challenging immigration environment. If you need assistance, please contact us today via email at info@sumnerimmigration.com, or by calling our office at 804-396-3412. We are immigration lawyers based in Richmond, VA, but serve clients across the country.