Updated Rulemaking Agenda Again Lays Out Trump’s Harsh Plans for Foreign Nationals

At the end of 2017, MurthyDotCom summarized a number of concerning immigration regulations under consideration by the Trump Administration in the NewsBrief, Troubling Immigration Rules, Including End of H-4 EAD, on Trump’s Rulemaking Agenda (2017.Dec.15). While none of the rules has yet come to light, the U.S. Department of Homeland Security (DHS) updated its rule list for spring 2018, indicating that the Administration is still intending to move forward with several regulations that will negatively affect immigrants.

Significance of Agenda Items and Timelines

The fact that an item is on the agency rule list does not necessarily mean it ever will become a final regulation. There are a number of steps that it must go through, and it is not unusual for a rule to be listed on the agenda, but never to be enacted. Further, while an estimated period for publishing a proposed or final rule is provided, these are merely estimates, and are subject to change.

For the rule to move forward, it typically must first be published as a proposed rule in the Federal Register. The public then is provided with an opportunity to submit comments to the relevant agency. The comments then must be reviewed and considered. The rule generally will not go into effect until at least 30 days after it then is published as a final rule in the Federal Register. This process ordinarily takes at least a few months, and sometimes considerably longer.

Brief Summary of Key Immigration Rules Being Considered

Eliminating H-4 EAD Program

The proposed regulation to eliminate the H-4 EAD program is now listed with a tentative June 2018 release date. No further details have been provided.

Again, this would merely be a proposed rule. Until and unless a final rule is implemented, the H-4 EAD program will remain in place, and applications will continue to be processed.

Toughen H1B Standards

This proposed rule, entitled Strengthening the H-1B Nonimmigrant Visa Classification Program, would “revise the definition of specialty occupation” and “revise the definition of employment and employer-employee relationship.” No specifics have been provided. This proposed rule was previously calendared for release in October 2018. Now, the tentative issuance date is January 2019.

Changes to F-1/M-1 Practical Training

A rule that appears to still be under consideration, entitled Practical Training Reform, somehow would alter the programs allowing practical training (e.g., OPT) available to many F-1 and M-1 students. No details are provided, but the brief indicates that the changes would be “… to improve protections of U.S. workers who may be negatively impacted by employment of nonimmigrant students on F and M visas. The rule is a comprehensive reform of practical training options intended to reduce fraud and abuse.” The proposed rule is still scheduled to be published in October 2018.

Elimination of Parole Program for Entrepreneurs

In 2017, the final international entrepreneur rule went into effect. It was designed to expand the immigration options for foreign entrepreneurs who help the U.S. economy by creating jobs, generating revenue, and attracting further U.S. investment. While the rule technically is still in place, it appears that not a single case has been approved. Worse yet, the Trump Administration now seeks to publish a proposed rule to terminate the program altogether. This proposed rule is slated for a May 2018 release.

Changes to Employment-Based, Fifth Preference (EB5) Immigrant Investor Program Still Forthcoming

In January 2017, a proposed rule, entitled EB5 Immigrant Investor Program Modernization, was published in the Federal Register. This version would have implemented massive increases to the minimum investment amounts required by EB5 investors, in addition to several other changes. The final rule was scheduled to be published in February 2018. Now, it is listed with a proposed release date of August 2018. The specifics of the final rule have not yet been released, but it is expected that they will only impact those EB5 cases filed after the final rule goes into effect.

Conclusion

President Trump clearly views immigrants – those here with or without lawful status – as a threat. This is despite the wealth of evidence demonstrating the positive impacts immigrants have on the U.S. economy and job market. As soon as any new details are provided, MurthyDotCom will post an update. Subscribe to the MurthyBulletin to have the information delivered to your inbox each week.

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