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. Though each agency sets projected publication dates for its regulatory activities, it is common for agencies to bypass these estimates.
H-1B program modernization
The Department of Homeland Security continues 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 was originally slated for publication in December 2021, but has been rescheduled for May 2022.
In addition, DHS has postponed a regulation that would have allocated H-1B cap numbers according to the DOL wage rate to be paid to the beneficiary, with priority given to beneficiaries paid at DOL Wage Level 4, the highest rate. The Trump-era regulation was invalidated by one federal court earlier this year; a second legal challenge to the regulation is ongoing but the Biden administration is expected to cease defending the rule and settle the case. A future proposal to change the way the H-1B cap is allocated cannot be ruled out, however.
Expanded border security fees for certain H-1B and L-1 filings
DHS plans a proposed rule that would expand the $4,000/$4,500 border security fee to H-1B and L-1 extensions of stay filed by employers with 50 or more U.S. employees, more than 50% of whom are in H-1B or L-1 status. Currently, employers subject to the fee must pay it for initial and change-of-employer H-1B and L-1 petitions at USCIS, as well as for blanket L applications at U.S. consulates; the fee does not now apply to extensions of stay or amended petitions. The proposed rule is slated for publication in May 2022.
Expansion of USCIS premium processing program
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 this month, postponed from September 2021. It is already under review at OMB.
Prevailing wage increases
The regulatory agenda reconfirms the Department of Labor’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. As expected, DOL is promulgating a new prevailing wage regulation, taking into consideration the feedback it received in a request for public comments conducted this past spring. Publication of the new proposal is slated for March 2022.
Inspection of Form I-9 documents
U.S. Immigration and Customs Enforcement (ICE) is planning a proposed regulation to set forth alternative for in-person inspection of identity and employment authorization documents in the Form I-9 employment eligibility verification process. Though the specific alternatives are not yet known, they could include forms of remote document inspection like those temporarily in place due to the COVID-19 epidemic. The proposed regulation is expected to be published in June 2022.
USCIS and State Department filing fee increases
USCIS is expected to publish a proposed regulation to increase petition and application filing fees. The proposed fee schedule is slated to replace a Trump-era fee regulation that was enjoined by a federal court in late 2020.
Similarly, the State Department is planning changes to nonimmigrant visa application filing fees and fees for waivers of the J-1 home residency requirement.
The USCIS proposal is expected to be published in March 2022 while the State Department proposal is slated for January 2022.
Elimination of B-1 in lieu of H
The State Department continues to support a rule that would eliminate the use of the B-1 visa in lieu of H-1B and H-3 visa classifications. Published as a proposal in late 2020 by the Trump administration, the rule is slated for final publication in 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.
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.