H, L Visas on DHS Regulatory Agenda
Over the past few years, DHS has changed the way it reviews H and L visa petitions from employers, which has resulted in significant increases in Requests for Evidence (RFEs) and denials. The rate of RFEs for H-1B visas has gone from 6% in FY 2015, to 24% in the third quarter of 2019. Denial of L visas has increased from 24% in FY 2016 to a current rate of 34%. The Administration’s proposed rules, if approved, would codify the review processes that produce these higher denial rates. Further, by going through the regulatory process, DHS will neutralize one of the arguments petitioners challenging denials are making in U.S. District Courts: that the denial was a violation of the Administrative Procedures Act (APA).
December 2019: “Strengthening the H-1B Nonimmigrant Visa Classification Program”
This new rule will revise some definitions (e.g., “specialty occupation” and “employer-employee relationship”) and ensure H-1B employees are paid wages that do not depress pay for American workers. This likely will be consistent with the RFEs many petitioners have been receiving. These question whether certain occupations really require a bachelor’s degree in a specific field, whether there is a bona fide employer-employee relationship when employees are working at third-party worksites, and whether a Level I job can qualify as a “specialty occupation.”
March 2020: “Removing H-4 Dependent Spouses From the Classes of Aliens Eligible for Employment Authorization”
Continuing its three-year campaign to rescind the policy that allowed dependent spouses of workers in H visa status to obtain Employment Authorization Documents (EADs), the Administration is predicting that the new regulation will be out of the Office of Management and Budget (OMB) and ready for final publication in spring 2020. A case challenging the legality of the H-4 EAD rule has been pending in federal court since before President Donald Trump’s inauguration. In early-November 2019, over the Administration’s objection, the Circuit Court of Appeals for the D.C. Circuit sent the case back to the District Court for a review on the merits. The case had been “paused” for close to three years because, the Administration argued, the case was about to become moot since the DHS intended to rescind the H-4 EAD rule. Eventually, the court grew tired of waiting. Perhaps the new rule will be published before the court acts.
September 2020: “Strengthening the L Nonimmigrant Classification”
This new rule would increase the requirements for L visas by redefining “specialized knowledge” and the employer-employee relationship. The regulations will also address appropriate wages for L-1 beneficiaries, even though there is no statutory wage requirement for this type of visa. The Department of State may have launched a “test balloon” on Ls. It had heightened the standard for evaluating Blanket L applications at Consulates from a “preponderance of the evidence” standard to a “clear and convincing” standard in an October 2019 Foreign Affairs Manual (FAM) change that was later withdrawn.
September 2020: “Enhancing the Integrity of Unlawful Presence Inadmissibility Provisions”
This rule makes it more likely for students and others in F, M, or J status to become out of status and subject to bars to U.S. re-admission for prior unlawful presence. USCIS’s attempt to do this with a policy change has been enjoined.
Presidential proclamations, policy announcements, and changes in the standard of review by administrative agencies can contradict the regulations those agencies implement. When that occurs, the government may be sued to enjoin implementation of the policy. By carefully wording responses to RFEs, and filing appeals for denials, employers can increase the chances their petitions will be approved. Policies that end up codified as regulations, however, make law suits against the government for violations of the APA less likely to prevail, and could make approvals for some employer petitions more challenging.