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Federal Immigration Agencies Release Fall 2019 Regulatory Agendas

The Departments of Homeland Security and State have announced their Fall 2019 regulatory agendas, which disclose each agency’s immigration rulemaking priorities for the coming months. When and if finalized, these rules could significantly impact the H-1B, L-1 and EB-5 programs, H-4 employment authorization, and adjustment of status filing procedures, among other programs and processes.

The following summarizes key employment-based items on the agencies’ immigration agendas. In all cases, the details of proposed and final regulations are confidential until released for publication.  Projected publication dates are subject to change.

H-1B and L-1 reforms; termination of H-4 employment authorization

A new entry to the DHS regulatory agenda, planned for publication in September 2020, is a proposal to redefine L-1B specialized knowledge, as well as L-1 employment and employer-employee relationships, with a likely focus on further restrictions on offsite placement of L-1 employees. The proposal is also expected to impose new wage obligations on L-1 employers, though the regulatory agenda does not specify the nature of these obligations. Unlike the H-1B program, the L-1 program is not currently subject to wage requirements.

DHS continues to move forward with a long-promised proposal to revise the definition of an H-1B specialty occupation to “increase focus on obtaining the best and brightest foreign nationals.” Originally slated to be published for public comment in August of this year, it is now projected for December 2019. The rule is expected to revise the definitions of “employment” and “employer-employee relationship,” with a likely focus on restriction of offsite placement of H-1B workers. The proposal is also anticipated to address H-1B wages.

A long-deferred proposal to rescind a program that permits certain H-4 spouses to apply for employment authorization is now projected to be published March 2020. The details of the proposed rule – including whether currently valid H-4 EADs will remain valid until their expiration – are not yet known. 

Foreign student periods of stay and practical training

A proposal by ICE to modify the period of authorized stay for certain F-1 and other nonimmigrants from duration of status (D/S) to a specified end date, retains the same publication date of February 2020.  Currently, foreign nationals with a D/S period of authorized stay are permitted to remain in the United States until the end of their authorized activity (plus any applicable grace period), whichever date that may be.

In addition, ICE’s proposal to revise practical training rules for F and M foreign students has returned to the regulatory agenda with an anticipated publication date of August 2020.  This practical training rule had been removed from the Fall 2018 regulatory agenda and temporarily placed on the agency’s long-term action list.  The forthcoming proposal is expected to seek restrictions on 12-month optional practical training (OPT), STEM OPT extensions, and curricular practical training (CPT).

Business visitors

DHS and the State Department intend to propose a rule to ensure a more rigorous implementation of the B-1/B-2 business or tourist visitor visa classification. This proposed regulation, which had initially been slated for publication in October 2019, is now scheduled for March 2020. It is expected to change current policy in some respects, possibly by restricting permissible business visitor activities. These restrictions could include the elimination of policies that allow B-1 visitors to engage in work in the United States in limited circumstances, such as the use of B-1 in lieu of the H-1B classification.  A proposed amendment to a related State Department regulation would similarly restrict the ability to work in B-1 status; this proposal is slated for December 2019.

Consequences of nonimmigrant status violations

A new proposal seeks to codify DHS’s policies concerning accrual of unlawful presence and the three- and ten-year bars to admissibility.  One element of this proposal could cause foreign nationals to accrue unlawful presence if they violate the terms of their nonimmigrant stay, such as engaging in additional employment or other activities that are not permitted under the rules of the program under which they were admitted.

EB-5 program

DHS continues to proceed with two proposals for further reform of the EB-5 program, just days before a final regulation to increase EB-5 investment minimums is set to take effect.

Aproposal to change the way EB-5 Regional Centers are designated has an updated anticipated publication date of August 2020. The proposed rule was originally scheduled for publication in March 2019 and was subsequently deferred to March 2020.

An advance notice of proposed rulemaking is to seek public comment on monitoring and oversight of the EB-5 program as well as encouragement of investment in rural areas in advance of a broader proposal to alter the program. The advance notice has a revised publication date of September 2020. The notice was originally slated for September 2019 and was subsequently deferred to March 2020.

Green card processing

A proposal to change the way adjustment of status applications are processed is now slated for publication in April 2020, deferred from September 2019. The proposal seeks to discontinue the concurrent filing of adjustment of status applications with Form I-140 employment-based immigrant visa petitions and other preference petitions. This proposal could have a significant impact on employment-based green card applicants, including delaying the filing of applications for adjustment-based employment authorization and advance parole documents.

Fee increases 

The U.S. Department of State intends to increase consular filing fees, which includes nonimmigrant and immigrant visa application fees. Its proposed fee rule is scheduled for November 2019.  It was originally slated for July 2019.

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

Agency regulatory agendas do not have an immediate effect on current programs, but are the clearest indication of the Trump Administration’s continued plans to restrict the H-1B, L-1, EB-5, and H-4 EAD programs. Organizations should take note of the forthcoming proposals when planning for future immigration needs, but should be aware that postponement of projected publication dates is common. 

In most cases, the agency is expected to publish proposed regulations through regular administrative procedures. This would include a comment period to allow individuals and organizations to provide feedback, though a comment period is not guaranteed in all cases. Proposed rules would not take effect until the agency completed the regulatory approval process, which normally takes several months or more.  

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