The Changing Foreign Worker Landscape, Part 3

immigrant foreign worker

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C: Changes in H-1B Criterion

The Regulatory Agenda also listed as prospective areas of further rule making “Strengthening the H-1B Non-Immigrant Visa Classification Program.” 

The agenda is not specific, but speculation is that this could mean restricting the definition of “specialty occupation” to limit the number of persons who can qualify for H-1B status.  Other possible modifications to the program could also include augmenting the paperwork needed to demonstrate eligibility and increasing filing fees for employers.

D: Restricting Availability of Curricular Practical Training (CPT) and Optional Practical Training (OPT) for Students 

In order to combat what is perceived to be fraud in these training programs, which allow students in special work-study programs to work full time during part or all of their academic program or allow newly minted graduates to become employed full time for a year in an area consistent with their academic training,

Administration critics of CPT and OPT contend that these programs are allowing foreign nationals unfairly to compete with Americans in the job market. As such, heightened oversight requirements may be in the pipeline.

Possible changes may include raising substantially fees associated with obtaining CPT and OPT employment authorizations for students and requiring schools to take a more substantive role in approving training programs and in ensuring that employers comply with the approved program’s standards and goals.

E. Fee Increases

It is anticipated that, as part of its regulatory goals for the coming year, DHS may also seek material fee increases to discourage employers further from hiring foreign nationals.

The Take Away:

  • DHS’s regulatory agenda suggests an oncoming era in which we will encounter further restrictions on the options of young, skilled nonimmigrants and spouses of temporary workers, and a heightening of the level of scrutiny exercised in connection with the Immigration Service’s evaluation and adjudication of non-immigrant, temporary worker petitions.
  • It is entirely unclear how such proposed rulemaking will affect the over-all economy and whether it will actually enhance the job prospects for Americans, particularly at the higher skill levels. One can only hope that regulators will consider facts in formulating their rule making and not merely rely on the populist, anti-immigration narrative espoused by the Administration. 

Related articles:

Part 1: Parole for Entrepreneurs Revisited

Part 2: Small Business Hiring Challenges and the Immigration Landscape

What Are Potential Small Business Impacts of New Immigration Policies?

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About the author

Robert Goodman

Robert Ian Goodman, Esq. represents clients worldwide in the areas of complex commercial immigration and international and domestic commercial law. Mr. Goodman also provides general counsel services to entrepreneurs and start-up businesses and counsels foreign businesses interested in establishing a presence in the U.S. marketplace and U.S. businesses interested in expanding abroad. Mr. Goodman is principal of Goodman Immigration. He is also Special Counsel to the international boutique law firm, Sharma & DeYoung LLP ("S&D"), where he directs the firm's commercial immigration practice. He also co-chairs that firm's Technology and Emerging Companies Practice Group and is a member of S&D's Commercial Litigation and Arbitration Practice Group. 

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