The Department of Homeland Security (DHS) has set forth its regulatory priorities in a regulatory agenda published as part of the administration’s overall regulatory priorities on May 22, 2019.

Several critical changes are contemplated.  With regard to H-1Bs, the administration proposes a revamp of the program purportedly to ensure that H-1Bs go to the “best and brightest.” Of course, this was never the stated original purpose of the H-1B – H-1Bs were intended to fulfil labor market shortages, and other visas are available based on talent and accomplishment.

The administration seeks to change the definition of the employer-employee relationship, increase base wages, and alter the definition of specialty occupation.  Specialty occupation is something defined by statute and not actually changeable by regulation – it’s likely any regulatory alteration to this definition won’t survive a challenge in the courts.

Also on the agenda, a change implementing a registration fee for employers seeking cap-subject H-1Bs under the lottery system,  Recall that a regulation released at the beginning of the year sought to change the H-1B cap selection process in two ways: but reversing the order of the US Master’s and general category lotteries (something implemented in April for the Fiscal 2020 cap selection), and implementing an online lottery system so that employers would no longer need to submit complete petitions unless actually selected (something not yet implemented for Fiscal 2020, and planned for implementation for the coming Fiscal 2021 lottery in April of 2020 when the technology is ready).  The proposal would implement a fee for employers registering to use this online lottery entry system, though we don’t yet know how much the fee would be or the mechanics of collection.

In addition, the regulatory agenda states an intent to eliminate the opportunity to receive employment authorization for H-4 spouses of H-1B holders – something the administration has long discussed.  Currently, under an Obama administration rule, H-4 spouses could obtain employment authorization if the H-1B had completed the immigrant visa petition phase of the permanent residence process, and the priority date for the case was not yet current such that a final state Adjustment of Status (or consular processing matter) could be filed and completed.  Elimination of this ability will most impact individuals in long-retrogressed categories, primarily Indian and Chinese nationals.

Another change would eliminate the ability to concurrently file I-485 Applications to Adjust Status along with visa petitions under preference categories. Such concurrent filing – where immigrant visa petitions and I-485 Applications to Adjust Status are submitted simultaneously – is currently permitted where an immigrant visa would be “current.” In other words, where an immigrant visa is immediately available at the time the immigrant petition (typically an I-140 Petition for Alien Worker in the employment context) is filed.  This allows coverage of status to an extend by the Adjustment filing and interim work and travel authorization, in some cases reducing the need to extend nonimmigrant visas.  Elimination of this possibility will lead to ongoing needs to extend nonimmigrant visas and reduced overall viability of some case types.  It isn’t expected to impact marriage-based permanent residence or permanent residence petitions by over-21 citizens for parents, which are not considered “preference” petitions.

Currently, individuals from Visa Waiver Program countries must complete an application under the “ESTA” (“Electronic System for Travel Authorization”) system to be admitted through ports of entry at airports, but not at border ports of entry which still use paper I-94 cards to gather biographic information.  The administration proposes to extend use of the ESTA system to border ports of entry.

Yet another proposal the administration seeks to bring forth by regulation involves major changes to how USCIS interprets the “Public Charge” ground for inadmissibility – likely to keep step with changes made by the US Department of State last year in connection with how this issue is adjudicated at consulate abroad.  We can expect regulations asking adjudicating officers to look at circumstances beyond the I-864 Affidavits of Support – even where an I-864 sponsor has more than enough income.