Competing U.S. Business Immigration Policy Agendas

The U.S. Administration and the Congress have generally competing agendas as to changes with U.S. business immigration policy. The Administration, through regulatory actions, is looking to tighten work visa usage, whereas the Congress is moving in specific areas to loosen restrictions. Recent actions provide us with a snapshot as to where the two branches of government are currently heading on business immigration policy.

Yesterday, the U.S. House of Representatives passed by a vote of 365 to 65 the Fairness for High-Skilled Immigrants Act (H.R. 1044).  H.R. 1044 would remove the country cap limitations, with certain parameters, on the number of green cards available to high-skilled workers from any particular country.  Under current policy, only seven percent of green cards can be issued in a year to nationals from a given country, regardless of its population.

As the House vote tally indicates, the Fairness for High-Skilled Immigrants Act has wide bipartisan support in the House with 311 cosponsors of the bill.  In the Senate, the companion bill (S. 386) has 34 cosponsors who are fairly evenly divided between Republican and Democratic Senators. There are a few Senators who have expressed concerns with the legislation, which makes its passage less certain than in the House.

How This Impacts Mobility

Passage of the Fairness for High-Skilled Immigration Act would provide employers with more flexibility, as there would be a total number of green cards available regardless of the country, on decisions regarding the relocation of high-skilled employees to the U.S.

A good indicator of where the Administration is heading on specific business immigration policy changes is the most recent Semi-Annual Regulatory Agenda released by the Department of Homeland Security (DHS) U.S. Citizenship and Immigration Services. Regulatory agendas are a compilation of actions a federal department or agency intends to take on policy initiatives under its jurisdiction. A list includes already proposed regulations as well as anticipated regulations and, in some cases, wish list items on which the agency or department never acts.  The DHS agenda includes several items of interest to workforce mobility.

The first item is a proposed rule which would eliminate the ability of H-4 visa holders, as the spouses of H-1B visa holders, to work in the U.S. On February 20, 2019, DHS sent the rule to the Office of Management and Budget (OMB). OMB is responsible for clearing all proposed rules prior to public release to ensure the rule has met regulatory requirements, and to seek input from other federal agencies. Once OMB has approved its release, the proposed rule is published in the Federal Register for public comment.  As of June 11, the rule is still under review by OMB.

While H-4 visa holders have been eligible to seek employment in the U.S. only since May 26, 2016, approximately 70,000 spouses are now employed. Rolling back the eligibility will impact H-1B and H-4 holders currently residing and working in the U.S. Should the rule become finalized, married highly skilled foreign workers will need to take into consideration that they will be a one-income household when considering whether to relocate to the U.S., thereby potentially reducing the pool of interested workers.

The Worldwide ERC® Government Affairs Immigration Forum has formed a working group which will draft the comments of Worldwide ERC® in favor of maintaining the ability of H-4 visa holders to be eligible for employment in the U.S.

The second item of interest on the DHS regulatory agenda is the development of a proposed rule on the definition of “specialty occupation” under the H-1B program.  While just a broad description of the purpose of the rule is available at this time, past activity by DHS has indicated a tightening of the definition to further reduce the use of the outsourcing of lower level but still high-skilled foreign workers.  The DHS agenda cites the timing of a notice of proposed rulemaking as August of this year.

Finally, while not a policy change but still impactful to mobility, the agenda lists the development of a proposed rule to revise the fees the USCIS charges for obtaining visas and other services.  USCIS is required to review on a semi-annual basis the costs of providing services compared to its revenue and adjust accordingly. It is likely that USCIS will propose raising its fees in accordance with the requirement.  A significant increase would come into play and be considered in decision-making as companies determine the overall cost of hiring or relocating foreign nationals for positions in the U.S.

In coming months, we are likely to continue to see other instances in which the Administration and the Congress take different approaches to business immigration policy. Worldwide ERC® supports global employee mobility and will continue to keep you apprised of these and other potential immigration policy changes around the world.

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