Restricting Immigration by Regulation: Trump Administration Regulatory Changes to the Legal Immigration System

Over the last year, the Trump administration has used its executive authority to adopt or propose behind-the-scenes regulatory changes at U.S. Citizenship and Immigration Services (USCIS) that will impact the issuance of visas and green cards in the legal immigration system. These policies largely stem from the April 2017 “Buy American and Hire American” Executive Order, which follows through on President Trump’s campaign promise to stop foreign workers from taking American jobs by tasking federal agencies to develop policies that fight “fraud and abuse” in the legal immigration system. While these existing policies and proposed changes have largely focused on the H-1B high skilled visa, they have also affected other visa categories, such as the E-B5 investor visa and H-2B low skilled visas, as well as green card applicants.

Proposed changes have largely focused on the H-1B high skilled visa, but they have also affected other visa categories, such as the E-B5 investor visa and H-2B low skilled visas, as well as green card applicants.

In the case of existing and proposed policy changes to the H-1B Visa Program, USCIS has:

• Unveiled new guidance for H-1B and H-2B visa extension petitions that allow USCIS employees to treat the petition for already-approved visas as a new initial filing even if the employer, worker, and conditions remain unchanged from the first filing.
• Proposed overhauling the standards for reviewing and granting H-1B petitions, including:
  • Narrowing the program’s scope to foreign workers considered to be “the best and the brightest” in their field;
  • Updating the definition of employment and employer-employee relationship to limit outsourcing; and
  • Adopting new standards requiring employers to pay “appropriate wages” to H-1B recipients.
• Recommended creating an electronic registration program for filing H-1B visa requests that would limit H-1B application slots to ensure that only the most skilled or highest-paid individuals receive these visas.
• Suggested rescinding Obama-era programs that authorized a work permit for certain spouses of H-1B visa holders to help them integrate into the local job markets.

In the case of other visa program and green card applications, USCIS and Immigration and Customs Enforcement, which oversees student visas, have:

• Mandated in-person interviews for individuals applying for a green card based on employment sponsorship, a step that was discretionary and regularly waived in prior administrations.
• Pushed proposed Obama-era proposed rules to reform the EB-5 immigrant investor visa that would raise the minimum investment for most EB-5 filings from to $1 million to $1.8 million.
• Resurrected a Clinton-era proposed rule that would define the term “public charge,” a term in the Immigration and Nationality Act that requires an immigrant to prove that they have the resources to support without reliance on government assistance.
• Requested more oversight for programs that allow F-1 Student and M-1 Vocational Student Visa recipients to work in the United States after their studies on optional practical training.

The scope and range of these policy proposals show that the Trump administration is willing to use its administrative and regulatory authority to reduce the number of permanent and temporary visas that allow foreign nationals to work in the United States and increase vetting of potential immigrants. While many of these policies have not yet become final rules, the administration’s reliance on agency policy guidelines, as opposed to the legislative process, suggests that they may continue to use executive authority to impact the legal immigration system going forward.