New H-1B visa regulations set to take effect in January will empower government officials probing possible fraud just as the Trump administration takes control of the country’s immigration system.
US Citizenship and Immigration Services finalized efforts this week to clean up abuses in the specialty occupation visa program heavily used by the tech industry, following a revamp earlier this year to the annual H-1B lottery. A number of provisions were welcomed by employers, among them deference to prior decisions on visa eligibility, loosened eligibility criteria for cap-exempt visas, and protections for international graduates changing visa status.
Additional measures to strengthen the hand of USCIS investigators, such as requirements for employers and workers to comply with unannounced worksite visits, could make keeping the Biden-era regulations an attractive option for incoming Trump officials focused on enforcement, immigration attorneys say.
“It’s reasonable to predict that the new administration will embrace that authority because it has repeatedly expressed the need for extreme vetting,” said Angelo Paparelli, a partner at Vialto Law (US) PLLC.
Visa Abuses
USCIS began overhauling the H-1B program last year after announcing that it had identified attempts to game the lottery process visas, which are capped at 85,000 annually. Some employers appeared to be colluding to make multiple submissions on behalf of individual workers, USCIS said, artificially boosting their odds of winning.
By January, the agency had finalized its lottery overhaul. Data released later would show a steep drop in lottery registrations, driven by a reduction in duplicates.
The latest regulations go even further to ensure that the jobs workers are employed in actually match the H-1B petition, or that they even qualify for the visas.
For example, they require employers or third-party companies to cooperate with compliance reviews and work site visits by the USCIS Fraud Detection and National Security Directorate, the agency’s investigative arm—potentially at the home of visa holders. Refusing to cooperate could lead to a visa petition being denied or revoked.
Attorneys and business groups including the US Chamber of Commerce argued those provisions don’t provide adequate due process protections.
The Department of Homeland Security gave the fraud directorate “warrantless search and seizure” powers with the rule, Jonathan Wasden, managing attorney at Wasden Immigration Litigation, said
“I don’t think Trump would change a thing,” he said. “There’s no daylight between the Trump and Biden administrations on this issue.”
The Trump transition team didn’t respond to a request for comment on the regulations.
Wasden said USCIS isn’t empowered by statute to conduct those on-site inspections through FDNS, a legal authority the agency defended in the final regulations.
Regulatory Redo
Still, the incoming administration could seek to do away with the new regulations—either on its own or through the help of allies on Capitol Hill.
The White House could ask Senate Republicans to nullify the rule with a simple majority voting in favor of a Congressional Review Act resolution. But a CRA vote would also block the Trump administration from issuing new regulations that are “substantially the same” although the statute doesn’t define scope of that term.
DHS could also issue new H-1B regulations through notice-and-comment rulemaking—a process that would take many months—or through an interim final rule that could be tougher to justify.
Elon Musk and Vivek Ramaswamy, who are advising Trump on his deregulatory agenda, have also argued that the executive branch could simply pause enforcement regulations that it thinks go beyond an agency’s authority.
The latter option is “a pretty extraordinary legal theory,” but each one of those options would come with a number of question marks, said Bo Cooper, a partner at Fragomen, Del Rey, Bernsen & Loewy LLP.
“There’s some provisions in here the Trump administration will definitely want,” he said. “I think they’ll like the FNDS stuff. They’ll like some of the integrity provisions.”
The work site provisions of the new regulation are not “inherently problematic” and aim to address real concerns with visa abuse, said Leon Rodriguez, a partner at Seyfarth Shaw LLP. The question is how they’ll be implemented, he said.
It would be worthwhile for USCIS to develop protocols to give notice to employers and visa beneficiaries similar to notice given for audits of I-9 forms establishing workers’ employment eligibility, said Rodriguez, a director of agency during the Obama administration.
“Work site visits can be very uncomfortable and intimidating,” he said. “The balance is always between FNDS having really good tools to address fraud in the system, but at the same time minimizing use on people trying to do things the right way.”
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