The Changing Foreign Worker Landscape, Part 3
immigrant foreign worker

Small business owners will have limit candidates pools for specific skill sets.


On December 14, 2017, the Department of Homeland Security (DHS) released its Regulatory Agenda for 2018, which outlines general regulatory objectives for the agency in the coming year.

By all accounts, the restrictive trends seen so far precipitated by the April 2017 Buy American-Hire American Executive order will continue.

A: Possible Elimination of the H-4 Work Authorization Program

In 2015, the Obama Administration promulgated a final regulation allowing H-4 spouses of H-1B temporary workers, who were the beneficiaries of an approved immigrant petition, to obtain work authorization. Up to that time, H-1B spouses (H-4s) were precluded from working.

This circumstance clashed with the rules governing other nonimmigrant (temporary worker) visa categories (like the L and E categories), which allow spouses to work. The apparent purpose behind DHS’s intention to reverse this rule is ostensibly to militate against H-4s from competing with American workers.

In fairness to DHS’ critical focus on this issue is that the Obama era rule did not impose any restrictions on the scope of H-4 employment so that, ironically, H-4 spouses with work authorization had more flexibility to obtain employment than their H-1B principal spouses.

The idea that some restrictions on H-4 employment should be imposed is not unreasonable, but to eliminate the program wholesale is likely adversely to affect the prospects of highly skilled H-4 spouses, whose level of expertise could be meeting serious public needs.

For example, among this office’s clients is a firm that employs a PhD Biomedical Engineer whose H-4 spouse is an oral surgeon and a clinical professor of Prosthodontics at a leading University.

She also treats patients.

While a careful re-delineation of the current H-4 employment rule may be in order, the tendency of the Administration to promulgate blunderbuss guidance with little consideration as to its potential unintended consequences has created an atmosphere of foreboding in this area.

B: Possible Heightened Scrutiny of H-1B Candidates

Another regulatory change being considered is to implement a pre-registration process for H-1B candidates, so that only the most skilled are allowed to participate in the H-1B lottery.

As employers may be aware, only a limited number of H-1B (temporary worker) visas are available each fiscal year, which has rendered the H-1B visa category substantially oversubscribed. The result, for at least the last several years, has been that DHS has conducted a random lottery, which, on average, has eliminated about one-third of potential H-1B candidates from consideration.

The advent of a preselection phase could virtually eliminate the prospects of newly minted graduates, with limited work experience, from obtaining H-1B status unless they operate in a field involving Science, Technology, Engineering or Medicine (“STEM Fields”)

Next page- Changes in H-1B Criterion, Restricting Availability of Curricular Practical Training, Fee Increases


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