Regulatory Agenda Gives Clues to DHS Priorities and Upcoming Changes to H-1B and H-4 Visas

Regulatory Agenda Gives Clues to DHS Priorities and Upcoming Changes to H-1B and H-4 Visas

This spring, the final H-1B rule partially went into effect for the FY 2020 cap season. The rule changed the way petitions were selected for the H-1B cap and also set forth the conditions for a new H-1B registration system. After significant public feedback, DHS decided to delay the registration system until the FY 2021 cap season. There have been a number of changes discussed that would affect the H-1B and H-4 visa programs, so we wanted to summarize and update you on the most impactful proposals.

Updated I-539 Form: No Courtesy Premium Processing for H-4 Spouses

H-4 spouses no longer enjoy courtesy premium processing when the H-1B petition is upgraded to the faster processing option. As a reminder, USCIS updated the Form I-539 during the busy weeks of this year’s cap season, making the following changes:

  • Every co-applicant on the primary Form I-539 must submit and sign a separate Form I-539A. Parents or guardians may sign on behalf of children under the age of 14.
  • Every applicant and co-applicant must now pay separate $85 biometric services fees (except certain A, G, and NATO nonimmigrants).
  • Every applicant and co-applicant will receive biometric services appointments, regardless of age, containing an individual receipt number. The appointments will be scheduled at the Application Support Center (ASC) closest to the primary applicant’s address. (Co-applicants who wish to be scheduled at a different ASC location should file a separate Form I-539.)

Proposed Rescission of H-4 EAD 

In 2015, DHS published a final rule extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants seeking employment-based permanent residence. That rule is now being reconsidered as the Trump administration signaled its intent to remove work authorization for H-4 dependents in late 2017. The proposed rule has moved forward to review by the Office of Management and Personnel, but has likely been delayed by ongoing litigation.

While the final rule will not be available until it is published in the Federal Register, we expect that the rule will provide a timeline for no longer accepting H-4 EAD applications and that it will determine when current H-4 EAD holders will need to stop working (unless obtaining an alternative work-authorized status). If the rule is rescinded, there could be additional litigation to challenge the ruling. Individuals currently working on the H-4 EAD should consider an independent work-authorized status if available.

I-129 Tips: Rejection for Incomplete Information & Updated Filing Addresses Without Announcement

Companies use Form I-129, or Petition for a Nonimmigrant Worker, to file for workers to come to the U.S. to temporarily perform services or labor. Many common visas utilize the form including but not limited to the H-1B, E-1/E-2, L-1A/L-1B, O-1A/O-1B, and P-1 visas. USCIS announced that beginning on Monday, August 5, 2019, Form I-129s without a petitioner or applicant’s name and primary U.S. office address will be rejected without adjudication or review. Currently I-129 forms can be rejected for a missing signature, checks made out for the wrong fees, or an unauthorized third party signing instead of a petitioner.
The announcement specifically notes that the primary U.S. office address cannot be the address of the counsel or any clients. According to the announcement, including clients or attorney addresses instead of the primary U.S. office address “creates unnecessary delays in the adjudication of Form I-129 and may result in its rejection.” In most cases, the Form I-129 can simply be refiled with missing information and fees, but it is important to consider status issues and planning ahead for a timely filing.
In July 2019, certain I-129 filing addresses were updated on the USCIS website, without prior notice or announcement. It appears that the changes affected cap-exempt petitions for extension of stay, change of status, concurrent employment, consular notification, and amended petitions, but excludes those filed for cap-exempt entities. Petitions were previously accepted at Vermont and California Service Centers, but will also be directed to the Nebraska and Texas Service Centers going forward.

H-1B Registration Rule Update: Registration Fee May Apply

After numerous public comments, USCIS posted the final H-1B registration rule requiring petitioners to register in a new system on behalf of cap-subject aliens. The rule also reverses the order in which H-1B petitions are selected for adjudication, potentially increasing the number of H-1B visa holders with U.S. master’s degrees. While the rule was published on January 31, 2019, the electronic registration requirement has been suspended until the FY 2021 cap season “to complete user testing and ensure the system and process are fully functional.”

Since President Donald Trump signed the “Buy American, Hire American” executive order in 2017, the Department of Homeland Security has made a series of changes to adjudication processes through policy memoranda. The executive order put a special emphasis on the H-1B program and directed the Secretary of Homeland Security to “suggest reforms to ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.” USCIS Director Cissna stated:
“The registration system, once implemented, will lower overall costs for employers and increase government efficiency. We are also furthering President Trump’s goal of improving our immigration system by making a simple adjustment to the H-1B cap selection process. As a result, U.S. employers seeking to employ foreign workers with a U.S. master’s or higher degree will have a greater chance of selection in the H-1B lottery in years of excess demand for new H-1B visas.”

The new registration system would allow employers to wait until a registrant is selected for the cap before submitting the H-1B petition. Only basic information would be required during the registration process for the employer and beneficiary, including the employer’s name, EIN, address, authorized representative information, basic biographic information about the beneficiary, and notification of the employer’s attorney or accredited representative.

This spring, DHS published the Unified Agenda of Regulatory and Deregulatory Actions which included mention of a fee for H-1B registrations for petitioners seeking to file H-1B petitions on behalf of cap subject individuals. According to the American Immigration Lawyers Association (AILA), the fee will likely be between $10 and $20 for each registration, based on the response to comments received on the original rule. AILA also predicts that the proposed rule could be published this summer for implementation prior to the FY 2021 H-1B cap filing season begins.

Contact Challa Law to discuss how the changes to the H-1B and H-4 visa programs could affect your company.