Illegal Border Crossings Today:

Trump Administration Releases Regulatory Agenda

Trump Red Tape

by Liz Jacobs

In late December, the Office of Management and Budget (OMB) released the Trump administration’s regulatory agenda, called the Unified Agenda, revealing how immigration policy is likely to change in 2018. The Unified Agenda is a semi-annual reporting of regulations being considered by the federal government. Overall, the agenda’s immigration-related proposals underscore the Trump administration’s commitment to protecting American workers and conforming immigration policy to federal law and the “Buy American, Hire American” executive order.

The most significant immigration-related proposals include:

  1. Rescinding International Entrepreneur Parole. This policy, which was published in the Federal Register in January 2017, created a program to allow foreign entrepreneurs to be considered for parole into the U.S. if they had established a start-up entity and have received substantial financial investments or otherwise promised innovation or job creation. This Obama-era policy circumvents existing immigration law and numerical caps that regulate employment-based immigration. Grossly exceeding the agency’s parole authority, this policy allows foreign entrepreneurs seeking to work in the U.S. to enter without obtaining visas.
  2. Improving the H-1B nonimmigrant program and petitioning process. The H-1B program allows businesses to temporarily employ foreign workers in occupations that require highly specialized knowledge and a bachelor’s degree or higher in the specific specialty.  The administration will likely revise the definition of “specialty occupation” to prioritize the “best and the brightest” and redefine the employer-employee relationship. Both reforms are aimed at better protecting American workers against outsourcing and wage depression. The administration also intends to create an electronic registration system to streamline the application process.
  3. Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Work Authorization. The agency is considering removing the Obama-era rule that allows H-4 visa holders, who are dependent spouses of H-1B nonimmigrants, from receiving work authorization. The Obama administration issued this rule in February 2015, which allowed about 130,000 spouses and children of H-1B visa holders to work in the U.S. last year.
  4. Defining the term “public charge.” To conform policy to existing federal law and protect American taxpayers, the agency will propose regulations to define this term regarding the inadmissibility of an alien who is likely to become a cost to the public or dependent on public assistance.
  5. Reforming the Optional Practical Training (OPT) program. The OPT program allows foreign science, technology, engineering or math (STEM) degree-holders who arrived in the United States on foreign student F or M visas to remain in the country and work for as much as years after they graduate from a U.S. school, thereby bypassing American worker protections built into existing law. DHS plans to issue a notice of proposed rulemaking in October to comprehensively reform the program.
  6. Modernizing the Employment-Based, Fifth Preference (EB-5) Immigrant Investor program. The EB-5 program was created by Congress in 1990 to award green cards to foreign investors and their immediate family members. The program allocates 10,000 visas every year to foreign investors who create or preserve at least ten jobs and invest at least $1 million. However, in 2002, Congress created the Immigrant Investor Pilot Program, which reserves 3,000 EB-5 visas for investors who participate in the program through “Regional Centers” in rural or high unemployment areas. These participants are only required to invest $500,000 and have less strict job creation requirements. DHS Office of Inspector General and the Government Accountability Office audits have repeatedly exposed evidence of pervasive fraud and mismanagement throughout both programs.

DHS must publish the proposed regulations in the Federal Register to allow the public an opportunity to comment on them before the agency can make these administrative changes. Once the agency has reviewed the comments, it will decide whether to issue a final regulation.