Immigration Agencies Announce Their Fall 2023 Regulatory Plans

The Department of State plans to implement the limited H-1B domestic visa renewal pilot program in February 2024. U.S. Citizenship and Immigration Services has delayed to April 2024 the publication of a final rule that would increase filing fees for immigration benefit applications and petitions, including the fee for registration of candidates for the annual H-1B cap lottery. The Department of Labor has dropped a rule from its agenda that would have raised prevailing wages in several nonimmigrant programs and in the PERM labor certification program.

The issue

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.

Department of State

The State Department released an updated timeframe for implementation of the highly-anticipated H-1B domestic visa renewal pilot program, now slated to begin in February 2024. It is still expected, however, that a Federal Register notice outlining the pilot eligibility requirements and parameters will be released in the coming weeks, ahead of the projected February program start date. The notice has been under review at the Office of Management and Budget since mid-October.

In the immigrant visa realm, the State Department plans to propose an amendment to diversity visa immigrant visa regulations that would require applicants to provide valid, unexpired passport information in their online diversity visa registration form. The proposal is slated for publication in February 2024.

The agency also still plans to issue a final rule that would permit a waiver of the requirement for immigrant visa applicants to appear before a consular officer. Details of the rule, including eligibility parameters, are not yet known. It is now slated for publication in February 2024, postponed from October 2023.

Finally, the agency plans to issue a final rule this month permitting individuals to accompany applicants to U.S. passport, Consular Report of Birth Abroad (CRBA) and certain other U.S. citizen services appointments in certain circumstances. A proposed rule was issued in July 2023 and the public comment period ended in late September 2023.

Department of Homeland Security

The Department of Homeland Security (DHS) is planning to propose two new regulations to modernize procedures and policies concerning certain employment-based green card and nonimmigrant categories.

A proposed rule slated for August 2024 would seek changes to the regulations governing EB-1, EB-2, and EB-3 immigrant worker petitions. The regulations are expected to address requirements concerning a petitioner’s ability to pay the wage offered to the sponsored worker, codify “successor in interest” policies that apply when an I-140 petitioner has had a significant change in its ownership, and update provisions governing petitions for individuals of extraordinary ability and outstanding professors and researchers. The proposed rule is also expected to address evidence requirements for EB-1 petitions, national interest waiver petitions, and petitions for physicians of national and international renown.

DHS will also propose changes to regulations concerning work authorization for dependent spouses of nonimmigrant workers and increase flexibilities for certain nonimmigrants who resign or are terminated from their employment. The agency also plans to modernize policies and procedures for employment authorization documents (EADs). The proposed rule is slated for October 2024.

A much-anticipated final regulation to increase fees for many USCIS petitions and applications – including the fee for registering foreign nationals for the annual H-1B cap lottery – has been deferred to April 2024. The fee rule had been slated for publication in March 2024 but had been rumored to be released early, potentially by the end of this year. In addition, a CBP rule that would apply the $4,000 or $4,500 9-11 Response (Pub. L. 114-113) fee to all H-1B and L-1 extension petitions filed by employers subject to the law, instead of only to their initial H and L petitions, is now slated for April 2024, postponed from December 2023.

A proposed rule to alter some aspects of the adjustment of status process has been deferred to March of 2024; it had been set for publication in December of this year.

Department of Labor

Three years after first initiating rulemaking to increase prevailing wages for the H-1B, H-1B1, E-3, and PERM programs, the Department of Labor (DOL) has, for now, removed this initiative from its current regulatory agenda.

DOL has also reaffirmed its intent to seek public feedback on a possible expansion of the list of occupations exempt from the PERM labor certification process – known as “Schedule A.” The proposal is expected to invite public comment on the possible expansion of “Schedule A” to include STEM and other occupations for which U.S. workers are in short supply. A Federal Notice seeking public input on the proposal was submitted to the Office of Management and Budget (OMB) for review in November. The proposal is intended to effectuate a specific mandate in the recent Executive Order on Artificial Intelligence (AI).

DOL has 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. The proposed rule, which had previously been slated for release in August 2023, is now projected for publication in October 2024.

In September, DOL separately published a proposed rule to amend the H-2A temporary agricultural worker regulations, to improve working conditions and worker protections and strengthen protections in the recruitment, job order clearance, and oversight processes. The comment period on this proposed rule closed in November, and publication of a final rule is currently slated for April 2024.

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 the rule 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.