New Immigration Regulations for 2018

December 27, 2017 Chelsea Iversen

 

The Office of Information and Regulatory Affairs published an agenda representing the Trump administration’s promise to reduce government regulations on Americans. The Unified Agenda of Regulatory and Deregulatory Actions includes government agencies’ plans to propose new immigration regulations and change regulatory requirements in the coming year.

Regarding immigration, the Unified Agenda lists some forthcoming proposed actions to remove certain immigration regulations and to change other immigration policies; as such, it helps set in motion President Trump’s January 2017 executive order on reducing regulation and controlling costs in the government, which required that for every regulation put in place another two be considered for elimination.

The Department of Homeland Security recently released its regulatory plan as part of this agenda, which outlines strategies for achieving a unified effort to protect Americans. Some of the regulatory changes included will impact U.S. Citizenship and Immigration Services (USCIS) and employment-based immigration. USCIS is set to replace some old actions with new immigration regulations in 2018 that will protect American jobs and working conditions and keeps Americans safe.

So, how does the agency propose to do that? Here are some of the regulatory changes that could be implemented:

The international entrepreneur

USCIS plans to propose getting rid of the International Entrepreneur Parole rule, which is a new program that allows particular entrepreneurs, investors and researchers to apply for parole to be present in the U.S. on a case-by-case basis as they work on building their businesses.

As the program stands now, an entrepreneur, investor or researcher who has established a start-up in the U.S. with substantial backing from U.S. investors or the promise of job creation in the U.S. can be considered for a parole status in the U.S. USCIS will propose discontinuing this program next year. This program only recently went into effect after a federal court determined that the Trump administration had improperly sought to delay its implementation.

H-1B visa clarifications

Another big change USCIS will be focused on this coming year would be redefining what a “specialty occupation” is in terms of H-1B visa status. The agency wants to refocus this visa classification on “truly obtaining the best and brightest foreign nationals via the H-1B program,” according to the DHS agenda. The agency also plans to redefine H-1B “employment” and the relationship between employee and employer to “help better protect U.S. workers and wages.”

H-1B visa petition regulations

The plan is for USCIS to establish new immigration regulations that will help improve the H-1B petitioning process and live up to Trump’s early 2017 executive order, Buy American Hire American.

The proposed new immigration regulations for the H-1B petitioning process would include establishing an electronic registration program for H-1B visa petitions subject to the annual H-1B cap, which would allow USCIS to more efficiently manage the H-1B cap lottery process when more petitions are received than H-1B visas are available, in which every company that wishes to have a worker receive an H-1B visa must file a hard-copy petition with the USCIS first, before the lottery is conducted. The USCIS published a proposed rule to institute an electronic registration system for the H-1B cap in 2011, but it was never finalized nor implemented.

H-4 spouse work authorization

USCIS also intends to propose eliminating the ability of certain H-4 visa holders to obtain work authorization. Thanks to a rule in the Federal Register that was published in February 2015, certain dependent spouses of H-1B visa holders under H-4 status were eligible to apply for and receive authorization to work in the U.S. Now, USCIS wants to get rid of this eligibility.

F-1 Practical Training reforms

U.S. Immigration and Customs Enforcement (ICE) will proposed a rule that will provide a “comprehensive reform” of practical training options for students on F-1 academic student and M-1 vocational student visas.

This proposed regulation promises to significantly change oversight and eligibility for OPT, the practical training option that many F-1 students use after graduation to work in their field of study while potentially being sponsored for H-1B status. ICE states that this proposed rule is required to “improve protections of U.S. workers who may be negatively impacted by employment of nonimmigrant students on F and M visas.”

Inadmissible immigrants

Next year, USCIS will be proposing new immigration regulations relating to the “public charge” ground of inadmissibility and as a criteria for being issued a green card, where the USCIS will provide more specific guidance on how the government will find that a foreign national has the potential to become a “public charge.” In this case, a public charge is a foreign national who is likely to depend on the U.S. government for subsistence.

Changes to EB-5 investors

USCIS plans to modernize the EB-5 immigrant visa category, a classification for immigrant investors, to keep up with today’s economy. Overall, the agency plans to strengthen the EB-5 program with a focus on transparency and efficiency during adjudication and beyond.

Other proposed changes

The Department of Homeland Security has also proposed the following other changes in the Unified Agenda:

  • USCIS stated that it is currently engaged in a review of its fee structure, and that after that review is complete, adjustments to the fees necessary for applying for immigration petitions and applications may then need to be adjusted.
  • U.S. Customs and Border Protection will update legal authorities allowing CBP to more widely collect biometric data from foreign nationals entering and exiting the United States, including the collection of foreign nationals’ digital photographs.
  • CBP will propose that foreign nationals from Visa Waiver Program countries who seek to enter the United States at land ports of entry must provide certain biographic information in advance of their entry through the online Electronic System for Travel Authorization (ESTA), rather than on a hard-copy Form I-94W at the time of admission. This requirement already applies to VWP travelers who seek to enter by air or sea ports of entry.

Read more about the new immigration regulations and news here.

 

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