Federal Immigration Agencies Issue Regulatory Agendas

Summary

The agenda reflects the regulatory priorities of the Biden Administration for the coming months.
The Department of Homeland Security is planning a proposed rule to amend aspects of the H-1B program, including a redefinition of the employer-employee relationship, rules for the longstanding site visit program, and clarification of petition amendment requirements.
A forthcoming DHS regulation is expected to implement recent legislation expanding the USCIS premium processing program.
The Department of Labor is proceeding with a proposal to increase prevailing wages for the H-1B and PERM programs, among others.
A forthcoming State Department regulation seeks to eliminate the use of the B-1 business visitor category in lieu of H-1B.

The issue

The Departments of Homeland Security, Labor and State have issued their new regulatory agendas – the first for the Biden Administration. The agendas reveal each agency’s rulemaking priorities and timelines for the coming months. The agendas of the Departments of Homeland Security and Labor appear in today’s Federal Register; the State Department agenda is expected to be published in the Federal Register soon, and currently appears on the website of the federal Office of Management and Budget.

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. In addition, agencies routinely bypass projected publication dates of items on their regulatory agendas.

H-1B program modernization

The Department of Homeland Security intends to pursue a new proposed rule to amend aspects of the H-1B category. The rule is intended to redefine the H-1B employer-employee relationship, establish regulations 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 clarify when a material change to H-1B employment occurs, necessitating an amended petition, as well as streamline the required notification to USCIS when an H-1B employee changes to a new worksite location. The proposed regulation is slated for publication in December 2021.

Expansion of USCIS Premium Processing

The Department of Homeland Security is planning a final regulation to implement legislation that authorizes USCIS to broaden premium service to a number of additional employment-based immigration benefits applications and petitions, including Form I-140 petitions for EB-1 multinational managers and executives and those seeking a National Interest Waiver of the labor certification requirement, including EB-2 physicians; applications for employment authorization on Form I-765; and applications to change or extend status for the dependents of H-1B, L-1 and other principal nonimmigrant categories on Form I-539. The final regulation is slated for publication in September 2021.

Prevailing wage increases

The regulatory agenda does not add any new Labor Department proposals on skills-based immigration, though it does confirm the agency’s plan to move ahead with a rule to raise prevailing wage rates for H-1B, H-1B1, E-3 and PERM programs. A final prevailing wage rule had been scheduled to take effect on November 14, 2022; however, a federal court in June vacated the Trump-era regulation, with the Labor Department’s consent. Though the regulation has been vacated, DOL is expected to promulgate a new prevailing wage regulation, taking into consideration the feedback it received in a request for public comments conducted this past spring. Based on that feedback, DOL could make changes to the methodologies used in the prior version of the rule to compute the different wage levels. Publication of the proposal is slated for November 2021.

Renewed effort to preserve DACA

The Biden Administration plans to promulgate new regulations that seek to reinstate and strengthen the Deferred Action for Childhood Arrivals (DACA) program, following a recent federal court decision imposing a permanent injunction against the DACA program. DHS projects that by August 2021 it will propose a DACA rule that follows notice and comment rulemaking procedures. Separately, bills pending in Congress seek to create a legislative solution for DACA beneficiaries and DACA-eligible foreign nationals.

State Department request for feedback on barriers to immigration

Consistent with a February 2021 executive order issued by President Biden, the State Department plans to formally request comments from the public on identifying barriers that impede access to immigration benefits and to fair, efficient adjudications of these benefits. The request for comments was slated to be published in June.

Public charge

The State Department will also seek comments from the public on its public charge interim final rule, which was published in October 2019, and subsequently enjoined by federal court. The agency reports that a request for public comments is scheduled for September 2021. The State Department’s interim final rule mirrored a Department of Homeland Security public charge rule that is no longer in effect. This week, DHS sent an advance notice of proposed rulemaking on public charge to the Office of Management and Budget for review, meaning the agency will seek public comments even before publication of a proposed regulation. Publication of the advance notice is slated for August 2021, so it is likely there will be further coordination between the agencies on a new public charge rule. Based on the descriptions in each agency’s regulatory agenda, the new versions of the rules are expected to differ significantly from the Trump-era public charge rules.

B-1/B-2 visitor visas

The State Department continues to support a rule that would eliminate the B in lieu of H-1B and H-3 visa classifications. Published as a proposal in late 2020 by the Trump administration, the rule is now slated for final publication January 2022. The Biden State Department has decided not to pursue a separate Trump-era B visa regulation that would have revised B eligibility criteria more generally.

Immigrant visa applicants

The State Department also plans to issue two rules affecting immigrant visa applications at U.S. consulates abroad. In response to significant consular backlogs and reduced consular operations at worldwide, a forthcoming temporary final rule would permit consular officers to waive the in-person interview for certain repeat immigrant visa applicants whose applications were approved on or after September 2019. The rule is slated for September 2021 and would be in effect until 180 days after the COVID-19 national emergency declaration is terminated. Another immigrant visa rule scheduled for publication in September 2021 would create a limited exception to the in-person interview and oath requirement for certain immigrant visa applicants; details on who might qualify are not yet known.

What’s ahead: the regulatory timeline and impact on current immigration programs

The regulatory agenda is an indication of the Biden Administration’s agency priorities in the coming months. If the Administration follows standard rulemaking procedures, 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 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.