The  Department of Homeland Security (DHS) plans to propose new regulations that, if passed in final form, would significantly change the H-1B program. The F-1 practical training and H-4 employment authorization rules would also potentially change.

The main changes include the following.

Termination of the H-4 employment authorization program. DHS will propose to rescind regulations that currently permit certain H-4 spouses to apply for employment authorization.  This rule should be published in February 2018.

H-1B cap lottery pre-registration and selection.  In 2011, there was a proposed rule that would require H-1B petitioners to pre-register for the H-1B cap lottery and to submit cap petitions only after they have won cap numbers. This rule may now be instated.  DHS also plans to propose a priority system for allocation of H-1B cap numbers, which would give priority to the most-highly paid and highly-skilled workers. This rule would also be published in February 2018.

H-1B eligibility criteria and wage requirements.  DHS plans a revision of the definition of
H-1B specialty occupation to “increase focus on obtaining the best and brightest foreign nationals.”  It plans to propose new definitions of employment and the employer-employee relationship in the H-1B context, for the purpose of protecting U.S. workers and wages. This is slated to be published in October 2018.

Changes to practical training for foreign students.  U.S. Immigration and Customs Enforcement plans to propose a comprehensive revision of optional practical training (OPT) rules for F and M foreign students.  The proposal would increase protections for U.S. workers and oversight of schools and foreign students, which could mean additional employer obligations and possible restriction of OPT, the STEM OPT program and curricular practical training. This is slated to be published in October 2018.

Fee increases.  DHS is reviewing USCIS filing fees and may propose fee increases.  The agency is also planning to increase Student and Exchange Visitor Program fees.

Please note that these are proposed regulations and will not have an immediate effect but it is a clear indication of the government’s position. The DHS will use its regular administrative procedures and will allow comments from the public. The rules would take effect after the agency completes the approval process so whether it will affect this year’s FY2019 H-1B cap season remains to be seen. We will keep you updated as we hear of any changes occurring.

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