Whither H-1B and H-4?

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An expert’s advice on how to spot major changes in immigration regulations affecting Indians and South Asians

The executive branch is planning to make sweeping new changes to the U.S. legal immigration system, including the H-1B visa program and work permits for H4 spouses —quietly and without waiting for Congress. Together these changes could impact the Indian immigrant community in the hundreds of thousands.

It’s no secret that the Trump administration is inclined to erect new barriers to immigration—and not just physical border walls. Last year saw a raft of restrictive new policies that could be implemented relatively quickly, by issuing public guidance to immigration officers or making behind-the-scenes changes to how visas are scrutinized. For example, U.S. Citizenship and Immigration Services (USCIS) made it more difficult for skilled foreign workers to obtain H-1B visas by tweaking the definition of “computer programmer,” denying more applications, and doubling the number of demands for more information from applicants (the dreaded “Request for Evidence,” or RFE).

But 2018 is shaping up to be an even more ambitious year, moving beyond operational changes and into a potential reinvention of the legal immigration system through new regulations. A regulation is basically lawmaking by a federal agency—it takes a relatively long time to implement, but it’s also difficult to roll back by a future administration.

That’s why it’s worth taking a close look at the bland but important Unified Regulatory Agenda, recently updated by the White House with little fanfare, which outlines several proposed changes to the legal immigration system that are hiding in plain sight. For example, it was just reported that the Department of Homeland Security (DHS) is making finishing touches on a proposal to block future work permit applications by H-4 visa holders. There are some 100,000 of these spouses of H-1B workers—mostly Indian women—whose long-term plans have been upended in anticipation of this change.

This whole process can take months or years to complete, and the status quo policy doesn’t change in the meantime. But even just the expectation of future changes can affect people’s lives today.

Take the International Entrepreneur Rule, designed to allow startup founders to create new companies and jobs in the United States, which is also officially on the chopping block—so it’s no surprise that it has only generated about 10 applications so far this year. Meanwhile, U.S. companies and universities are nervous about the official DHS plan to tighten up Optional Practical Training (OPT), a program that currently allows foreign students (predominantly from India and China) to stay in the United States for up to three years of on-the-job training after graduating with a degree in science, technology, engineering, or math (STEM).

All of these plans, first unveiled in the Unified Regulatory Agenda last fall, would effectively nullify prior Obama-era regulations. But the Trump administration has also declared its intention to break entirely new ground through the regulatory process. Although only Congress can change the absolute number of H-1B visas that are issued each year, DHS will seek to significantly change who gets them, by issuing regulations that constrain the type of workers who are eligible based on wages and skills, and by making as-yet-unspecified changes to the current “lottery” system that tends to reward the employers who demand the most visas. Many of the heaviest H-1B users are Indian IT outsourcing companies, which have not fared particularly well as targets of Trump administration criticism.

Communities across the country are also bracing for what may be the most sweeping regulatory plan on the docket: the so-called “public charge rule.” This regulation would depart from a century of precedent by denying green cards not only to immigrants who are dependent on welfare, but to immigrants who have taken advantage of nearly any public benefit for the past several years—or are deemed likely to do so in the future. This could make it much more difficult for millions of immigrants to keep their U.S. citizen children educated and well-fed, or for U.S. citizens to sponsor their elderly parents for green cards. This policy could even make it possible for lawful permanent residents of the United States to be deported if they use public benefits that are otherwise allowed under state and federal law. Many immigrants are already steering clear of nutrition assistance from fear of this policy.

None of these changes will happen immediately, because even though Congress delegates considerable regulatory authority to federal agencies, there’s a complicated playbook that must be followed. First, DHS must publish a “proposed rule” and make its reasoning available for public scrutiny. The public is invited to submit comments, whether in support or opposition, typically during a window of 30 to 60 days. DHS then has to digest all of these comments and come up with a detailed justification for why it has chosen to adopt or ignore the public’s suggestions. This stage can take many more months, followed by publication of the “final rule,” and only then does the new policy actually go into effect. That’s assuming, of course, that the final rule isn’t blocked by a federal judge—similar to past court challenges that temporarily suspended the administration’s rollback of Deferred Action for Childhood Arrivals (DACA) and the initial travel bans.

But the administration’s to-do list keeps growing. Newly announced regulatory plans on the agenda this month include:

• Making it mandatory to use a new electronic filing system for green card renewals (Form I-90) and naturalization applications (Form N-400), plus other visa application forms in the future, which could affect millions of people seeking visas or U.S. citizenship.
• Tightening up eligibility criteria for B-1/B-2 visa applications, which could affect millions of tourists and business travelers hoping to visit the United States.
• Requiring certain U.S. citizens to provide photographs or other biometric data upon entering or departing the United States.
• Eliminating the rule that USCIS has only 30 days to process an asylum applicant’s request for a work permit.

Let’s be clear: None of the above regulatory plans have taken effect yet. In fact, none of them have even left the starting gate, since DHS has yet to publish any of them as official “proposed rules” open to public comment. But that could change any day now, with a cascade of new proposals hitting the public record (and the news headlines).

Let’s also be clear that the Trump administration didn’t invent the idea of using regulations to modify the immigration system. When Congress failed to pass immigration reform in 2013 (after coming maddeningly close), President Barack Obama relied on regulations and other executive actions to, in his words, “fix as much of our immigration system as we can.” And some of these actions were met with furious litigation. (Full disclosure: I worked on many of these policies as a White House staffer.)

Today, Congress remains unlikely to take action on immigration matters (although some moderate House Republicans appear to be doing their level best). And so the Trump administration will seek to transform the legal immigration system through slow-moving but far-reaching regulations—plus a continued flurry of operational changes that aren’t exactly trivial, like a recent policy memo that could generate tremendous uncertainty for some 1.5 million foreign students each year.

If you have an opinion about any of these looming changes, it’s worth keeping an eye on the regulatory docket and making your voice heard when the time comes.Doug Rand served as assistant director for entrepreneurship at the White House Office of Science and Technology Policy from 2010-2017, where among other initiatives, he helped lead the high-skill immigration agenda including the H-4 Rule. He is co-founder and president of Boundless, “a technology company that helps families affordably navigate the immigration system.”