May 29, 2020

The Trump administration is expected to pass restrictions on high-skill immigration soon. According to Forbes, several sources confirmed it will implement new limitations on H-1B visa holders and international students, intracompany transferees, and likely even the spouses of high-skilled professionals.

Based on an analysis of recent administration actions, immigration law, and existing regulations, we suspect a combination of methods will be used to implement the restrictions:

Blocking New H-1B and L-1 Visa Holders

Under Section 212(f) of the Immigration and Nationality Act, a president only has authority against the “entry” of people, as opposed to actions inside the country. This means that a proclamation issued under 212(f) may only restrict the entry of foreign nationals, rather than denying a petition to change or extend status, or to deny an application to adjust status

For context, H-1B visa holders are not immigrants; they have a temporary status. Thereby the April 22, 2020 presidential proclamation suspending the “entry” of most immigrants did not apply to H-1B visa holders.

Given this limitation, a new presidential proclamation could suspend the entry of H-1B and L-1 visa holders, or achieve similar results by imposing new conditions on their entry.

Administration officials consider preventing the entry of H-1B visa holders who are not paid at the highest wage level (Level 4) under the U.S. government’s prevailing wage criteria, even if the individual is applying for their first job. This requirement would make the H-1B immigration process extremely difficult; it would create exceptionally high minimum wages for H-1B visa holders. Examples would be requiring more than $254,000 a year for a financial manager in New York City, $144,165 annually for a biochemist in Chicago, and $172,640 for a software developer in Silicon Valley.

As for L-1 visa holders, job protection requirements beg an explanation. After all, these individuals already work for a company, serving as multinational executives, managers, or employees transferred into the United States to benefit their company in ways only they are capable of. 

Using Regulatory Authority for H-1B, OPT, L-1 and H-4 Spouses

In order to restrict international students, L-1 intracompany transferees, and H-1B visa holders and their spouses from immigrating into the United States, the administration is considering using regulatory authority. This may include issuing regulations that have been on the agenda for months or years.

Some potential regulations actually overlap with a recent settlement between U.S. Citizenship and Immigration Services (USCIS) and the business group ITServe Alliance that overturned 10 years of policies restricting employers and H-1B visa holders. This includes a rule on H-1B visas already on the Trump administration’s regulatory agenda, which would “revise the definition of specialty occupation . . . and revise the definition of employment and employer-employee relationship.”

The administration is also targeting Optional Practical Training (OPT), which allows international students to work for 12 months, usually after graduation, and 24 additional months in science, technology, engineering and math (STEM) fields. A summary of a rule proposal on the agenda states: “ICE [Immigration and Custom Enforcement] will amend existing regulations and revise the practical training options available to nonimmigrant students on F and M visas.”

Although actions against OPT could be labeled “temporary” or a “suspension,” it would make it  harder for U.S. universities to convince international students to study in America, especially when countries like Canada continue to be very welcoming.

Trump administration has also been considering rescinding an existing regulation—H-4 EAD (employment authorization document)—that allows spouses of H-1B visa holders to work. The administration could issue the rule.

This comes amidst news that the Trump administration admitted little evidence exists to support the claim that spouses of H-1B visa holders harm U.S. tech professionals.

Attorney Feng suggests, due to daily-changed immigrant policy and regulations, you should submit your petition as soon as possible, no matter it is extend or transfer of your status, or  green card application. In the past couple of years, we have seen tougher and tougher immigration policy. If you plan to stay in U.S., don’t wait.