President Donald Trump speaks during a meeting in the Roosevelt Room of the White House, Jan. 4, in Washington, D.C. President Trump met with Republican members of the Senate to discuss immigration.  (Alex Wong/Getty Images)

There is lot of concern about changes in law related to H-1B visa extension as President Donald Trump seeks to make significant cuts and changes to the existing law. Will he do it? Yes, as that was his campaign promise – “Be American. Hire American.” Can he do it? – Not so fast, explains San Jose-based attorney Madan Ahluwalia. It is not as simple, there are many legal hurdles that Trump has to face before anything drastic happens to the existing laws.

LATEST UPDATE AT PRESS TIME: According to Immigration Voice, an advocacy group, “…USCIS is not considering a regulatory change that would force H-1B visa holders to leave the United States by changing our interpretation of section 104© of AC-21, which provides for H-1B extensions beyond the 6 year limit.”

While it is a cause for concern and there is panic in the H-1B and immigrant community, if we break down the issue and analyze it, the outcome could have many possibilities.

Factors

At play is a lot of factors – legal, socio-economic, and some purely political.

Legal issue surrounds American Competitiveness in the 21st Century Act which allowed the extensions. Socio-economic issue surround presence of certain nonimmigrant workers in the American society who are viewed negatively as taking American jobs away. Political issues arise from the socio-economic issues giving rise to election slogan by President Trump: “Buy American, Hire American.” President Trump is simply going through his campaign promise checklist.

Background

The H-1B visa is a nonimmigrant work visa typically issued for three to six years to employers to hire a foreign worker. But certain H-1B holders who have begun the green card process before their visas are about to expire can often renew their work visas indefinitely. Such laws were put in place under American Competitiveness in the 21st Century Act (known as AC21). It was passed in October 2000. The focus of AC21 was to change rules related to portability and caps for the H-1B visa to increase the effective number of visas available and make it easier for workers on those visas to switch jobs. Although the language of the Act references the Immigration and Naturalization Service (INS), the INS would soon be restructured and the functions of the INS referenced in AC21 would be handled by United States Citizenship and Immigration Services (USCIS), now Department of Homeland Security (DHS).

Trump administration, through the Department of Homeland Security, proposes to change these rules under AC 21 which would prevent H-1B visa extensions.

Such changes in rules under AC21 can only happen by issuance of new regulations because the actual law has to be changed by the Congress.

The proposed changes would have a dramatic effect particularly on Indian visa holders considering that more than half of all H-1B visas have been awarded to Indian nationals, according to the Pew Research Center. It is estimated more than 1 million H1-B visa holders in the country are waiting for green cards, many of whom are from India and have been waiting for more than a decade.

In order for the rules on H-1B extension to change, the Trump Administration has to find a legal way. Therefore, an understanding of how laws are changed is required.

The Process

The Department of Homeland Security (DHS) is a Government Agency. An Agency gets its authority to issue regulations from laws (statutes) enacted by Congress. In some cases, the President may delegate existing Presidential authority to an agency. Typically, when Congress passes a law to create an agency, it grants that agency general authority to regulate certain activities within our society. Congress may also pass a law that more specifically directs an agency to solve a particular problem or accomplish a certain goal.

An agency must not take action that goes beyond its statutory authority or violates the Constitution. Agencies must follow an open public process when they issue regulations, according to the Administrative Procedure Act (APA). This includes publishing a statement of rulemaking authority in the Federal Register for all proposed and final rules.

In my humble opinion, in order for change in H-1B rules to happen, the DHS will have to go through the process described above. This process involves public participation that normally happens through the immigration community which involves immigration lawyers, non-profit organizations, and is a Herculean task.

Before a proposed rule is published in the Federal Register for public comment, the President, as head of the Executive branch, may take the opportunity to review the rule. The President is assisted by the Office of Information & Regulatory Affairs (OIRA), which analyzes draft proposed rules when they are “significant” due to economic effects or because they raise important policy issues. For significant rules, the agency must estimate the costs and benefits of the rule and consider alternate solutions.

If the proposed rule requires the public to provide information to the government, the agency must estimate the paperwork burden on the public and obtain permission to proceed from OIRA. In addition, the agency may be required to analyze a proposed rule’s impact on: small businesses; state, local and tribal governments; families and federalism. It may also need to analyze issues of just compensation and unfunded mandates.

Keeping in mind that majority of tech companies such as Facebook, Apple, Google, Microsoft, Netflix, rely on H-1B visa workers, there is significant impact to American employers.

Tech giants such as Facebook and other big companies, from Bank of America to Caterpillar, have long argued that the 85,000-annual cap on these visas is too low and that they need to bring in more foreign tech workers because they can’t find enough highly-skilled American workers. Can you imagine, Facebook or Apple losing a significant percentage of their workers because this worker cannot renew the H-1B visa due to changes in regulation? – I can’t.

I am sure, Bay Area’s housing market would not be hot any more and traffic might be better, but other impact on the economy is difficult to imagine. It is quite possible that a big company might move its office overseas. Such moves could hurt cities like Cupertino or San Jose with reduction in tax collections.

The Administrative Procedure Act (APA) permits agencies to finalize some rules without first publishing a proposed rule in the Federal Register. This exception is limited to cases where the agency has “good cause” to find that the notice and comment process would be “impracticable, unnecessary, or contrary to the public interest.” These situations may include emergencies where problems must be addressed immediately to avert threats to public health and safety, minor technical amendments and corrections where there is no substantive issue, and some instances where an agency has no discretion to propose a rule because Congress has already directed a specific regulatory outcome in a law. The agency must state its reasoning for finding good cause in the preamble of the final rule published in the Federal Register.

H-4 EADs

Lastly, on May 26, 2015, the USCIS passed the Employment Authorization for Certain H-5 Dependent Spouses rule. It is worth discussion here.

In light of “Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization,” part of Fall 2017 Regulatory agenda by the Trump administration, we can expect a similar process before any changing of regulations take effect.

‘Save Jobs USA’ has done a great job in bringing a lawsuit and fighting for the rights.

My Take

I won’t be surprised if the Trump Administration actually makes the changes in H-1B regulations under AC 21 but they will be offending business conglomerates and the business community.  In final draw, such regulations will likely be challenged in courts of law, just like the resistance put forth by the immigrant community on H-4 EAD issue, and are likely to be struck down.

Until then, I feel we all should stick together as a community, be heard by our representatives and keep participating. Most importantly, get the best legal help available.