On December 14, 2017, the Department of Homeland Security (“DHS”) announced through notice in the Federal Register its desire to make two critical regulatory changes impacting employment-based immigration. Specifically, DHS focused on the H-1B and H-4 EAD programs:
- Strengthening the H-1B Nonimmigrant Visa Classification Program – Here, DHS states that it intends to revise the definition of “specialty occupation” to increase focus on obtaining the best and the brightest foreign nationals. DHS also intends to revise the definition of employment and employer-employee relationship to better protect U.S. workers and wages. Finally, DHS announced that it will propose additional requirements designed to ensure employers pay appropriate wages to H-1B visa holders.
- Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization – Here, DHS seeks to remove its February 25, 2015, final rule which extended employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status.
DHS’ clear focus moving forward is on “hiring American” and “obtaining the best and the brightest foreign nationals.” Currently we can only speculate on how DHS might redefine the H-1B program, but it is likely that the H-4 EAD program will end at some point in the future. If the H-4 EAD program is terminated, it remains unclear how DHS will treat valid H-4 EAD cards with authorization past the date it terminates the program.
It is also important to understand that any regulatory changes must go through the required legal process of notice and comment, so neither of these desired changes by DHS will be quick or immediate. Once DHS has determined its proposed changes, it will publish a notice in the Federal Register, which will be followed by a public comment period. Only then can DHS implement any changes. As such, nothing has changed in the current administration of these two programs other than DHS publicly announcing its policy goals moving forward.
Please contact SPS Immigration should you have any questions regarding how these changes might impact your U.S. immigration situation.
