Notes from USCIS's Fall 2018 Regulatory Agenda

The Department of Homeland Security has recently released its fall 2018 regulatory agenda, which includes a number of changes to current practices. H-1B visa holders are especially impacted by many of these changes.


First, the USCIS intends to propose a new rule that would create a registration requirement for anyone planning to file an H-1B cap-subject petition. While this rule would mean that employers would only need to file full petitions in the event that the beneficiary wins the annual lottery, there is a possibility that the USCIS will change the way the lottery works. Specifically, in light of President Trump’s “Buy American, Hire American” executive order, it is possible that the lottery may no longer be random, with more preference being given to beneficiaries with more education or higher salaries instead. In addition, the USCIS may also limit the number of applications it is willing to accept from any one company, which would likely mean that there will be fewer H-1B visas awarded to staffing companies and companies that outsource work.


Additionally, USCIS also plans to institute a rule that would define new meanings of the terms “employment,” “specialty occupation,” and “employer-employee relationship” in August of 2019, after the H-1B cap filings.


The spouses of some H-1B holders are also likely to be impacted by the new regulatory agenda. For months, the USCIS has intended to introduce a new rule rescinding work authorization of H-4 visa holders that had been introduced during the Obama administration. It appears the USCIS is finally ready to release the notice of this new rule in November of this year, and when this happens the USCIS will answer questions about whether or not current holders of H-4 EADs will be able to renew their work authorization.


Other impacts of the new regulatory agenda include USCIS updates regarding the recruitment requirements for the H-2A and H-2B programs in October 2018, revisions to the H-2A labor certification process in December 2018, and a variety of changes to the EB-5 program including increasing investment levels and limiting the designation of Targeting Employment Areas in November 2018, incorporating process changes for EB-5 Regional Center applications in March 2019, and ramping up monitoring of the EB-5 Program in September of 2019.


Furthermore, based on information presented in the new regulatory agenda, the USCIS also plans to update its fee schedule in February 2019, curtail access to the USCIS AAO for appeals and require electronic submission for all immigration benefit requests in April 2019, and eliminate the ability to file the I-140 petition and I-485 application concurrently in September 2019.