Immigration Agencies Announce Their Spring 2023 Regulatory Plans
The Department of Labor has significantly postponed its plan to propose increases in prevailing wages for the H-1B, PERM, and other wage-protected immigration programs; the proposal is now on the agency’s long-term agenda, slated for June 2024. The Department of Homeland Security continues to pursue proposed modernization of the H-1B program and changes to the adjustment of status process. U.S. Citizenship and Immigration Services has delayed to March 2024 the publication of a final rule that would increase filing fees for immigration benefit applications and petitions.
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.
Prevailing wage increases postponed
The regulatory agenda significantly defers the Department of Labor’s (DOL) plan to move ahead with a proposed rule to raise prevailing wage rates for the H-1B, H-1B1, E-3, and PERM programs. The proposal now appears on the agency’s long-term agenda, with a scheduled publication date of June 2024.
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. It has long been DOL’s plan to promulgate 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 September 2023, but has now been removed from the DOL’s current agenda and placed on its long-term action list, as noted above.
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 requirements 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 requirements 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 cap registration system.
The proposed regulation was slated for publication in October 2023 but has been rescheduled for December 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 proposal 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 December 2023.
DHS filing fee increases
USCIS has delayed the publication and implementation of a final rule to raise filing fees for immigration applications and petitions to March 2024. The agency’s proposed fee schedule, published in January of this year, sought significant increases for many employment-based immigration procedures, but was met with criticism in the business community. It is not yet known whether the final rule modifies the significant fee increases proposed earlier 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, instead of only initial H and L petitions for certain employers, is slated for December 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. The proposal is slated for August 2023.
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. That proposal is scheduled for publication in September 2023.
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 now plans to publish a final regulation in August 2023, postponed from May 2023.
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 October 2023.
J-1 intern and trainee programs
The State Department plans to publish 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 will be available upon its release.
Public charge
A proposed rule from the State Department regarding the public charge ground of inadmissibility has been postponed to April 2024. The agency intends to propose a rule that will largely mirror the DHS public charge rule that went into effect on December 23, 2022.
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 in January 2024.
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 December 2023.
Long-term regulatory plans
The agencies’ long-term regulatory agendas contain areas of rulemaking that remain on the agencies’ formal agendas, but are not anticipated to be prioritized within the next approximate year. The DOL prevailing wage rule, described above, now appears on the agency’s long-term agenda.
Notably, USCIS has removed 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. This L-1 rule no longer appears on either the USCIS current or long-term agenda.
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.