Trump goes ahead with H-1B, other immigration curbs before exit

Biden-Harris administration may undo changes when it takes over on January 20.

With just five weeks to go for his exit, President Donald Trump’s administration is moving ahead with its restrictive immigration agenda, including rules curbing the H-1B program and increasing wages across temporary worker programs.

The Fall 2020 regulatory agendas released by the Departments of Homeland Security, Labor and State suggest they plan to implement several of Trump’s longstanding immigration priorities before he leaves on Jan 20.

The agencies may be able to finalize some rules already in motion before inauguration day, but these could change when the Biden-Harris Administration takes office next month.

The key employment-based items on the agencies’ immigration agendas include tightening of the H-1B program and increase in prevailing wages, according to Fragomen, a leading US immigration law practice.

The Trump Administration is continuing to pursue three existing rules that would significantly impact the H-1B program, it said.

The Department of Homeland Security (DHS) plans to finalize a rule that would replace its random, computerized H-1B lottery with a system that allocates H-1B visa numbers according to the Department of Labor’s four-level wage system.

In spite of legal challenges, DHS will also continue to move forward with its rule revising the definition of an H-1B specialty occupation to “increase focus on obtaining the best and brightest foreign nationals,”  Fragomen.

The Department of Labor’s (DOL) prevailing wage interim final rule also appears on the regulatory agenda despite being set aside by a federal district court, it noted.

This rule took effect immediately upon publication in the Federal Register on Oct. 8, significantly increasing prevailing wages in the H-1B, H-1B1, E-3 and PERM labor certification programs without public opportunity for comment.

A long-deferred plan to rescind a program that permits certain H-4 spouses to apply for employment authorization is now scheduled to be published as a proposed regulation this month, delayed most recently from September.

The details of the proposed rule — including whether currently valid H-4 EADs would remain valid until their expiration — are not yet known,  Fragomen said.

The proposal would not take effect unless finalized, which is not expected in the Biden Administration, it said.

A final rule by Immigration and Customs Enforcement (ICE) to modify the period of authorized stay for certain F-1 and other nonimmigrants from duration of status (D/S) to a specified end date, is also scheduled for publication this month, delayed from July.

It is unclear, however, whether the targeted publication date is attainable, Fragomen said.

The State Department is also continuing its plans to revise rules affecting the business visitor category with two separate regulations, it said.

The agency plans to issue a proposal that would revise general B-1/B-2 policy, potentially by restricting permissible activities.

Another State Department rule that would eliminate the use of B-1 in lieu of the H-1B and H-3 (BILOH) classifications is further along in the regulatory process. But it’s unclear whether the Biden Administration would support the finalization of this rule.

Alongside the State Department proposals, DHS will propose more rigorous implementation of the B-1/B-2 business or tourist visitor visa classification by modifying the period of B visitor admissions.

Proposals relating to broadly expanding collection of biometrics also remain on the DHS agenda, Fragomen said.

DHS is also planning to amend its regulations governing the affidavit of support requirements applicable to mostly family-based green card applications.

DHS has moved some items from its Spring 2020 main regulatory agenda to the Fall 2020 “long-term action” list, Fragomen said.

This indicates that these proposed rules have been temporarily de-prioritized by the agency.  It is unclear whether the Biden Administration will support these long term plans.

The regulatory agenda is an indication of the Trump Administration’s agency priorities in the coming weeks with respect to restriction of the H-1B, H-4 EAD and foreign student programs, among others.

Agency rules that are not yet in effect on Jan. 20 could be postponed by the new Biden Administration, depending on the stage in the regulatory process, Fragomen said.

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