The Department of Labor has reconfirmed its plan to propose increases in prevailing wages for the H-1B and PERM programs, among others. The Department of Homeland Security continues to pursue proposed modernization of the H-1B program and changes to the adjustment of status process. The State Department has abandoned its plan to finalize a rule that would have eliminated use of the B-1 business visitor category in lieu of the H-1B and H-3 categories.
The Departments of Homeland Security, Labor, and State have issued their new regulatory agendas, which set forth each agency’s rulemaking priorities and timelines for the coming months.
The following summarizes key employment-based immigration items on the agencies’ agendas. The details of proposed and final regulations are confidential until each regulation is released for publication. Although each agency sets projected publication dates for its regulatory activities, it is common for agencies to bypass these estimates.
Prevailing wage increases
The regulatory agenda reconfirms DOL’s plan to move ahead with a proposed rule to raise prevailing wage rates for the H-1B, H-1B1, E-3, and PERM programs. A final prevailing wage rule had been scheduled to take effect in November 2022; however, a federal court vacated the Trump-era regulation in 2021, with DOL’s consent. DOL is promulgating a new prevailing wage regulation, taking into consideration the feedback it received in a request for public comments conducted in 2021. Publication of the new proposal had been scheduled for October 2022 but is now targeted for September 2023.
H-1B program modernization
The Department of Homeland Security (DHS) continues to pursue a proposed rule to amend aspects of the H-1B category. The rule is expected to redefine the H-1B employer-employee relationship and provide flexibility for start-up entrepreneurs, establish regulations and guidelines for the longstanding Fraud Detection and National Security (FDNS) site visit program, and further clarify cap-gap benefits for F-1 students awaiting a change of status to H-1B. The agency also intends to provide limited flexibility concerning employment start dates listed on petitions; clarify when a material change to H-1B employment occurs, necessitating an amended petition; and streamline the required notification to USCIS when an H-1B employee changes to a new worksite location. The regulation is also expected to increase anti-fraud safeguards in the H-1B registration system. The proposed regulation was originally slated for publication in May 2023 but has been rescheduled for October 2023.
Adjustment of status process changes
DHS continues to pursue a proposed rule that would make changes to the process for adjustment of status to permanent residence. The latest regulatory agenda provides new details on this proposal, which is anticipated to address the transfer of the underlying basis of an application to adjust status, changes to the way a child’s age is calculated for age-out relief under the Child Status Protection Act, Temporary Protected Status travel authorization and its impact on eligibility to adjust status, and employment authorization for derivative beneficiaries who are awaiting immigrant visa availability and demonstrate compelling circumstances. The proposal is slated for publication in July 2023.
H-2A and H-2B temporary worker programs
DOL has also reconfirmed its plans to update the regulations governing the H-2B temporary and seasonal worker program, including the H-2B prevailing wage rules, the temporary labor certification process, and enforcement of H-2B employer obligations. In addition, the agency announced plans to amend the H-2A temporary agricultural worker program to improve working conditions and protections for H-2A workers. Publication of the H-2A and H-2B new proposed rules is currently scheduled for June 2023 and August 2023, respectively.
Relatedly, DHS is planning a proposed regulation to modernize and reform the H-2A and H-2B temporary worker programs by introducing new safeguards and protections for workers.
Inspection of Form I-9 documents
U.S. Immigration and Customs Enforcement (ICE) plans to publish a final regulation giving it the authority to permit alternatives to in-person inspection of identity and employment authorization documents in the Form I-9 employment eligibility verification process. As proposed, the regulation stopped short of seeking direct, permanent changes to the I-9 process, but sought to give DHS greater flexibility to pilot alternative procedures or permit alternatives during public health or other national emergencies. DHS is currently reviewing public feedback on its August 2022 proposed rule and plans to publish a final regulation when it completes that process, anticipated to be May 2023.
State Department filing fee increases
The State Department plans to issue a final rule to adjust several nonimmigrant application filing fees, as well as fees for certain Border Crossing Cards and the J-1 home residency requirement waiver. The new State Department fee schedule is slated for March 2023, postponed from December 2022.
Waiver of in-person requirements for immigrant visas
The State Department also plans to issue a final rule that would permit a waiver of the requirement for immigrant visa applicants to appear before a consular officer to be interviewed and to execute their application in person. Details of the rule, including parameters of waiver eligibility, are not available at this time. The rule is slated for publication in April 2023.
Visa applicants will soon see a proposed rule from the State Department regarding the public charge ground of inadmissibility. The proposal is likely to largely mirror the DHS public charge rule that recently went into effect on December 23, 2022. The State Department’s public charge proposal is slated for January 2023.
B-1 in lieu of H regulation dropped
The State Department has removed from its agenda a Trump-era rule that would have eliminated the B-1 in lieu of H-1B and H-3 visa categories. The rule had been published as a proposal in October 2020, but a final rule did not follow. The State Department Spring 2022 regulatory agenda indicated that the agency was reconsidering issuance of the rule entirely. Since the rule does not appear on either the State Department’s Fall 2022 main or long-term agendas, the agency appears to have abandoned the rule for the time being.
Other regulatory activity
A final regulation is expected to increase DHS civil monetary penalties for immigration-related violations to adjust for inflation. The regulation is expected this month. A final regulation is also expected this month to increase State Department civil monetary penalties to adjust for inflation.
A proposed regulation would clarify naturalization testing requirements, update citizenship and naturalization eligibility requirements to reflect legal changes, and seek to clarify legal definitions. The proposal is slated for publication in July 2023.
Long-term regulatory plans
The agencies have also released their long-term regulatory agendas, a list of areas of rulemaking that remain on the agencies’ formal agendas, but are not anticipated to be prioritized within the next approximate year.
In particular, USCIS has reiterated its long-term plan to propose amendments to the L-1 regulations that would revise the definition of specialized knowledge, clarify the definition of “employment” and “employer-employee relationship,” and potentially impose wage requirements in the L-1 category. No long-term target date has been set for this L-1 rule.
USCIS also has plans to revise the requirements for filing motions to reopen or reconsider and administrative appeals of USCIS decisions. The agency claims the changes would update and restructure the relevant regulations in order to clarify and streamline the administrative review process. The proposed rule is tentatively scheduled for December 2023.
The State Department’s long-term agenda includes plans for a proposed rule that would update the J-1 intern and trainee program rules. The proposal is tentatively slated for release in January 2024 and further details would be available upon its release.
What’s ahead: the regulatory timeline
The regulatory agenda is an indication of the Biden Administration’s agency priorities in the coming months. Most regulations would first be published in proposal form, with a 30- to 60-day public feedback period. Such rules could only be implemented after the Administration gives meaningful consideration to the feedback it receives and then clears a final review by the Office of Management and Budget. The normal rulemaking process takes at least several months. Interim and temporary final rules may be implemented in an expedited manner in some circumstances.