H-2, H-1B Regulatory Changes on the Horizon

As has widely been expected, the Biden administration is in the process of updating two employment-based visa programs that just about all agree require some major fixing and updating. On the Spring 2023 Unified Agenda of Regulatory Actions, the Department of Homeland Security has given notice that it will put out two Notices of Proposed Rulemaking—essentially the first step in creating or amending regulations—related to the H-1B and H-2 visa programs.

In “Modernization and Reform of the H-2 Programs,” DHS states that it intends to issue a Notice of Proposed Rulemaking intended to modernize and reform both the H-2A and H-2B nonimmigrant worker programs. While not incredibly specific, the notice suggests that the new regulations would be focused on increasing efficiencies in the process, changing processes that result in exploitation or abuse of individuals seeking to enter the U.S. in H-2 status, and further strengthen protections for workers in general. Importantly, this would not revise the temporary labor certification process conducted through the Department of Labor.

In “Modernizing H-1B Requirements and Oversight and Providing Flexibility in the F-1 Program,” the Department of Homeland Security states that it intends to amend regulations governing H-1B workers and F-1 students who have H-1B petitions filed on their behalf. We’ll need to see the specifics before a specific judgment can be made about the proposals, but it is undeniable that fixes need to be made to the H-1B program, and especially in the H-1B registration process. USCIS has recently been revoking previously approved H-1Bs and denying filed H-1B petitions in what seems to be an unlawful manner in an attempt to deal with the issues that the current registration process has created. These unlawful actions are leading our firm to file lawsuits against the government for these denials and revocations that are hurting innocent workers and companies. We can only hope that these regulatory fixes will properly address the issue without overly burdening valid petitions.