Immigration: DACA Showdown Imminent as Moves to Restrict H-1B Visas Gather Steam

January 05, 2018

An October 2017 letter by 110 HR Policy Members urging Congress and the President to consider in policymaking the vital role foreign-born workers play in the U.S. economy proved to have adept timing as immigration reform is high on of the legislative agenda for the first time since 2013. 

DACA President Trump's move to end DACA in September 2017 set a March 5, 2018 deadline for Congress to strike a deal enshrining DACA protections into law before DACA recipients (a.k.a "Dreamers") lose their legal status.  Any deal is expected to include legislative relief for Dreamers in exchange for Republican immigration priorities such as adjusting immigration policy to a more merit-based approach and enhancing border security.  Majority Leader Mitch McConnell (R-KY) said recently, “If negotiators reach an agreement on these matters by the end of January, I will bring it to the Senate floor for a free-standing vote.  I encourage those working on such legislation to develop a compromise that can be widely supported by both political parties and actually become law.”  However, President Trump recently indicated that any DACA deal must include certain items that have been non-starters for Democrats, including funding for a border wall, an end of so-called "chain migration" (i.e., giving preferences to family members of legal immigrants) in favor of a merit-based approach, and ending the diversity visa lottery program.  A number of DACA bills aiming to achieve certain of these goals were introduced in 2017, though none have advanced out of either the House or Senate Judiciary Committees.  

New Requirements for H-1B Dependent Employers Despite entrenched disagreement on DACA, Congress is closer to a consensus regarding H-1B visas.  The House Judiciary Committee passed by voice vote the "Protect and Grow American Jobs Act," which seeks "to close a loophole in the H-1B visa program by requiring H-1B dependent employers to pay sufficiently high wages to ensure the protection of the workforce in the United States."  Under the bill, "H-1B dependent" companies would be defined as those where H-1B workers make up 20 percent of the full-time workforce for large employers, an increase from the current 15 percent.  Further, the new bill would establish a $90,000 threshold for H-1B workers employed by H-1B dependent companies (up from the current $60,000 threshold).  After one year, that level would rise to the lower of $135,000 or the average wage for the occupation in the area of employment, with a floor of $90,000.  Notably, the bill does not impose any new wage restrictions on employers that are not H-1B dependent.  However, if companies allow H-1B dependent vendors or other companies to place H-1B workers at or near their premises, they may be subject to restrictions seeking to prevent the replacement of United States workers by workers on H-1B visas.

New H-1B Regulatory Hurdles On the regulatory front, the Trump administration's regulatory agenda contains proposals that could revise the types of occupations H-1B temporary worker visas cover, adjust the H-1B lottery system, and eliminate a regulation that extends to spouses of H-1B workers the authorization to seek a work permit. Other proposed changes may include: 

  • Revising the definitions of "employment" and "employer-employee relationship" in cases involving H-1B visas in a likely bid to apply pressure to the practice of outsourcing H-1B workers to third-party clients; 
  • Overhauling the regulations governing the optional training program, which allows foreign students to work in the U.S. after graduation, in order to "reduce fraud and abuse" through means such as increased oversight; 
  • Allowing employers to preregister for the H-1B lottery; and
  • Applying new fees for visa petitions and applications.

Additionally, the Department of Homeland Security is reportedly considering regulations that would prevent H-1B visa extensions in cases where green card applications are pending.