Despite court judgements setting aside rules covering these issues, which were earlier introduced via a fast-track mode, the Trump administration proposes to follow up and re-introduce them.
In addition, the fall agenda of the Trump administration that was rolled out late on Friday night, India time, once again proposes to rescind the employment authorisation program for spouses of certain categories of H-1B visa holders.
The bi-annual unified regulatory agenda, is issued in spring and fall each year. It contains the regulatory plans of each agency for the coming months. From the immigration perspective the proposed plans of the Department of Homeland Security (DHS) and the Department of Labour (DOL) are pertinent.
“The agendas that were released suggest that the federal agencies plan to try and finalise and implement a number of President Trump’s longstanding immigration priorities, before the Biden administration is installed on January 20, 2021. It is unclear whether they would be able to do so,” Mitch Wexler, California based partner, at Fragomen, a global immigration law firm, told TOI.
The DHS has on its agenda a proposal to revise the definition of specialty occupation to increase focus on obtaining the best and the brightest foreign nationals via the H-1B program. It also proposes to revise the definition of the employer and employer-employee relationship, along with other changes to improve the integrity of the H-1B non-immigrant program, and to better protect American worker’s wages and working conditions.
It may be recalled that this proposal was earlier introduced on October 8, as an interim final rule, without the normal procedure of seeking and considering public comments, prior to its implementation. It was to come into effect on December 7. However, as reported by TOI, this order was set aside by a US district court on December 1.
Judge Jeffrey S. White of the US district court (Northern District of California), in his order had stated that the Trump administration has failed to show there was good cause to dispense with the rational and thoughtful discourse that is provided by the Administrative Procedure Act’s (APAs) notice and comment requirements.
“The DHS is likely to seek to remedy this defect by considering the public comments received after October 8 and then issuing the rule as final in the coming weeks. If finalized, administrative rules may require a delayed effective date,” explains Wexler.
Wexler adds that DOL’s interim final rule that significantly hiked wages, with effect from October 8, also appears on the regulatory agenda, despite being set aside by a federal district court.
In fact, a few days ago, post grant of a preliminary injunction by a US district court to ITServe Alliance and also the earlier order, DOL had rescinded its interim final rule and the old wages were reinstated.
The new wages were 40% or more higher and this had made it impossible for small and mid-sized companies in the IT sector to hire H-1B workers, it also had an adverse impact on other sectors such as smaller hospitals, educational and research institutions TOI had covered this development
“Now, DOL appears to be taking steps to publish the rule as final in the coming weeks. A delayed effective date or further litigation developments could impact whether the rule is in effect at the time the Biden Administration is in place,” said Wexler.
If the Trump administration manages to reintroduce these two rules, it would significantly impact those whose H-1B applications are up for renewal and also those aspiring to work in the US. Indians constitute the largest chunk of beneficiaries of H-1B visas. Nearly 2.78 lakh (or 72%) of H-1B visas issued or renewed during the fiscal year ended September 30, 2019 were allotted to Indians.
The fall agenda also continues with the plan to rescind the program that permits certain categories of spouses of H-1B visa holders to apply for employment authorisation. This is expected to be published as a ‘proposed regulation’ by December end. Normally, it takes some months for a proposed regulation to be finalised, thus it is likely that this proposal may not be taken forward by the Biden administration. If at all the program is rescinded, it could impact nearly a lakh Indian spouses.
The proposal for removal of the ‘International Entrepreneur Parole Program’, known as the start-up visa, which enabled foreign entrepreneurs to operate in the US for a certain period, is also expected to be introduced as a proposed regulation in the coming weeks