Earlier last week, The US Department of Homeland Security (DHS) announced several regulatory proposals it intends to impose for 2018. Among which, the most impactful changes to employers include termination of H4 EAD program allowing certain spouses of H-1B holders to seek employment, possible restrictions of F-1 OPT program and revising H-1B eligibilities and wages. While the announcement is not specific with regards to dates and details of how these rules will be implemented, we do anticipate that the change with regards to the termination of the H4 EAD program will be implemented in early 2018.
The H-4/EAD Program
In February 2015, the DHS published a final rule extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants who have approved I-140s (Immigrant Petitions). The rule allowed for eligible H-4 dependent spouses to apply for an Employment Authorization Document (EAD) that would allow them to work. Prior to this, H-4 dependent spouses from visa retrogressed countries who do not have a visa number available to file their adjustment of status/immigrant visa applications were not legally authorized to seek employment. For Indian-born foreign nationals, this could mean a wait time of around 10 years for a H-4 dependent spouse to seek employment from the time that the H-1B holder obtained an approved I-140.
Since its inception, this rule has been subject to numerous legal challenges. Currently, there is a case pending appeal in the U.S Court of Appeals on this issue. In February 2017, the Trump administration requested the U.S. Court of Appeals to place the case on hold while it reviews the regulation and considers its position. The DHS announcement last week is the clearest indication that it intends to terminate the H-4 EAD program. However, we do not have any details with regards to the time frame or how DHS intends to implement the program’s termination.
Currently, a foreign national attending US schools under F-1 status have the ability to receive Optional Practical Training (OPT), a temporary employment that is directly related to a F-1 student’s major area of study. Eligible students can apply to receive up to 12 months of OPT employment authorization before completing their academic studies and/or after completing their academic studies. In cases where students earned degrees in certain science, technology, engineering and math (STEM) fields, students can apply for an additional 24 months of post-completion OPT on top of the 12 months afforded to non-STEM students. The DHS announcement is vague as to the specifics of how F-1 OPT will be affected by the new regulatory changes beyond increased oversight of schools and students to ensure compliance with requirement of the program.
The DHS announcement proposes revising the definition of “specialty occupation” for H-1B eligibility to “increase the focus on truly obtaining the best and brightest” foreign nationals, and revising the definition of employment and employer-employee relationship to better protect US workers and wages. While it is unclear how the new regulatory language will be revised, this announcement fits the pattern of higher scrutiny on H-1B petitions that we have been experiencing since the Trump administration came into office. Specifically, we are seeing a higher than usual number of Request for Evidence (RFE) issued by USCIS for standard H-1B applications which were rarely seen in previous years.
With regards to employees working on H4 EAD, we recommend employers put these employees into alternative employment-based visa categories in anticipation of the H4 EAD program terminating in early 2018. Without an alternative employment-based visa, these employees will lose their work authorization following the formal termination of the H4 EAD program subject to any grace period. For foreign nationals working on H4 EAD that do not qualify to for L-1, TN, E-3, H-1B1 and O-1 visas, they should be placed in the FY 2019 H-1B cap lottery in hopes that they may be selected for the cap lottery to allow them to work sometime after October 1st, 2018.
With regards to employees currently working on F-1 OPT and H-1B, we do not currently have sufficient information to provide a detailed recommendation. We will closely monitor any new release from the US government and will issue a more detailed recommendation when we have further information.
For more information on the H-4 EAD, F-1 OPT and H-1B program, or any other immigration matters, please contact a member of our team.