Fall 2018 Rulemaking Agenda Foreshadows Troubling Immigration Regulations

The Office of Information and Regulatory Affairs (OIRA), which is part of the Office of Management and Budget (OMB), periodically publishes an updated list of agency rulemaking activity. This list provides some basic information on regulations being worked on by various government agencies. The agency rule list for fall 2018 was recently released, and it includes a number of anti-immigrant rules under consideration, such as the elimination of the program that allows a qualifying H-4 spouse to apply for an employment authorization document (EAD).

Significance of Agenda Items

The fact that an item is on the agency rule list does not necessarily mean it will ever become a final regulation. There are a number of steps that it must go through, and it is not unusual for a rule to be listed on the agenda, but to never be enacted. Further, while an estimated period for publishing a proposed or final rule is provided, these are merely estimates, and are subject to change.

Timeline for Proposed and Final Rules

For the rule to move forward, it typically must first be published as a proposed rule in the Federal Register. An opportunity then is provided for the public to submit comments to the relevant agency. The comments next must be reviewed and considered. The rule does not go into effect until it is published as a final rule in the Federal Register. This process ordinarily takes at least a few months, and sometimes considerably longer.

Eliminating H-4 EAD Program

As has been widely reported, the Trump Administration appears determined to restrict or more likely end the H-4 EAD program. The proposed rule is expected to be released as early as November 2018. No details are yet available, so if the rule is implemented, it is unclear what would happen to those with existing H-4 EADs. For the time being, however, the H-4 EAD program remains in place.

Proposed Changes to the H1B Program: Specialty Occupation and Employer Registration

One proposed rule, entitled Strengthening the H1B Nonimmigrant Visa Classification Program, aims to “revise the definition of specialty occupation” and “revise the definition of employment and employer-employee relationship.” No additional details are provided. The anticipated timeline for issuing the proposed rule was previously October 2018, but that date has been pushed back substantially and it is scheduled to be published in August 2019.

Another proposed rule, named Registration Requirement for Petitioners Seeking to File H1B Petitions on Behalf of Cap-Subject Aliens, appears to be resurrecting a rule that was proposed and then abandoned in 2011. This rule, which is slated for publication before the end of October 2018, would create an electronic registration system for employers filing in the H1B lottery. As with the other proposals, little in the way of detail is available.

No Regulatory Changes to F-1/M-1 Practical Training

A rule that previously was under consideration, entitled Practical Training Reform, sought to make changes to the programs allowing curricular practical training (CPT) and optional practical training (OPT) available to many F-1 and M-1 students. Fortunately, this proposal no longer appears on the agency rule list. However, it is possible this rule may come up for consideration again in the future.

Changes to Employment-Based, Fifth Preference (EB5) Immigrant Investor Program

In January 2017, a proposed rule, entitled EB5 Immigrant Investor Program Modernization, was published in the Federal Register. This version would have implemented massive increases to the minimum investment amounts required by EB5 investors, in addition to several other changes. No specifics have emerged regarding the final version of the rule, but it currently is scheduled for publication in November 2018, which means it could go into effect as early as December 2018.


The Trump Administration has failed to get any substantive immigration reform passed as legislation, so they are attempting to create new barriers against foreign nationals and employers via regulations and policy memos. MurthyDotCom will provide additional details as the information becomes available. Subscribe to the MurthyBulletin to receive future updates in your inbox.


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Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.