Proposed U.S. Policy Changes on H-1B and Spouse Work Visas

The Trump Administration is making changes to the H-1B visa filing process, as well as moving to eliminate the ability of H-4 visa holders to seek employment in the U.S. As a result, we will likely see a shift in the education levels and marital status of foreign nationals filing positions in the U.S.

On December 3, 2018, the Department of Homeland Security (DHS) issued a notice of proposed rulemaking to change the lottery process in which companies file H-1B visa petitions. The U.S. issues 65,000 H-1 visas each year, with another 20,000 to applicants with an advanced degree from a U.S. school of higher education. Presently, the lottery selection applies first to those with higher degrees and then to the larger pool of H-1B petitions.

Under the proposed rule, U.S. Citizenship and Immigration Services (USCIS) would first issue visas for the larger pool of 65,000 applicants before then filling the 20,000 slots for individuals with advanced degrees. According to DHS, the process will result in more individuals being selected with advanced degrees as part of the larger pool. DHS estimates an additional 16% or roughly 10,000 more individuals with advanced degrees will receive H-1B visas each year.

How This Impacts Mobility
Regarding workforce mobility, we will likely see more hiring of individuals with advanced degrees from U.S. institutions who are already in the U.S. than relocating or hiring foreign nationals from abroad.

On February 20, 2019, the Department of Homeland Security sent to the Office of Management and Budget (OMB) 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.

OMB is responsible for clearing all proposed rules prior to public release to ensure the rule has meet regulatory requirements and to seek input from other federal agencies. Once OMB has approved release, the proposed rule is published in the Federal Register for public comment.

How This Impacts Mobility
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. Married, highly-skilled foreign nationals contemplating taking positions in the U.S. may rethink the move due to the lower family earnings potential and desire for the spouse to work.

We will very likely see a final rule on the elimination of the current H-4 visa worker eligibility by the beginning of next year. As a result, we could see current H-1B visa holders with spouses who work seek job opportunities in countries in which the spouse is eligible for employment—and fewer married highly-skilled nationals, including those with advanced degrees, looking to settle and take jobs in the U.S.