The Department of Homeland Security (DHS) continues to support a proposed rule to amend aspects of the H-1B program, including a redefinition of the employer-employee relationship and clarification of petition amendment requirements, particularly in changes of work location. The Department of Labor has reconfirmed its plan to propose increases in prevailing wages for the H-1B and PERM programs, among others. However, a DHS proposal to allocate H-1B cap numbers by wage level is no longer on that agency’s near- or long-term agenda. DHS plans to issue a proposed rule to improve processing of Form I-485 Adjustment of Status applications. U.S. Immigration and Customs Enforcement continues to pursue its proposed rule to permit alternatives to physical inspection of I-9 identity and work authorization documents, with publication of the proposed rule currently scheduled for next month. The State Department is reconsidering its previously announced plans to eliminate the use of the B-1 business visitor category in lieu of the H-1B and H-3 categories. Both DHS and the State Department have regulations in the works to increase fees.
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.
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, 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 2023.
Updating adjustment of status procedures
In a new addition to its regulatory agenda, DHS plans to issue a proposed rule to improve processing of Form I-485 Adjustment of Status applications, including reducing processing times, promoting the efficient use of available immigrant visa numbers, reducing the potential for retrogression of cut-off dates, and expanding concurrent filing to the employment-based 4th preference category, including religious workers. This proposed rule is currently slated for publication in May 2023.
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 vacated the Trump-era regulation last year, with the Department of Labor’s consent. DOL is promulgating a new prevailing wage regulation, taking into consideration the feedback it received in a request for public comments conducted early last year. Publication of the new proposal is currently scheduled for October 2022.
Inspection of Form I-9 documents
The regulatory agenda for U.S. Immigration and Customs Enforcement (ICE) continues to include its proposed regulation to provide for possible alternatives to in-person inspection of identity and employment authorization documents in the Form I-9 employment eligibility verification process. Although the specific alternatives are not yet known, they could include forms of remote document inspection similar to those temporarily in place due to the COVID-19 epidemic. The proposed regulation is expected to be published in July 2022.
State Department reconsidering elimination of B-1 in lieu of H
The State Department’s updated regulatory agenda indicates that the agency is now reconsidering the Trump-era proposed rule to eliminate the use of the B-1 visa in lieu of H-1B and H-3 visa categories. A final rule on the issue is scheduled for publication in July 2022.
USCIS and State Department filing fee increases
USCIS continues to pursue 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 plans to issue a final rule to adjust nonimmigrant visa application filing fees and fees for waivers of the J-1 home residency requirement.
The USCIS proposed fee rule is scheduled to be published in September 2022, while the State Department final fee rule is slated for December 2022.
In addition to promulgating an updated fee schedule, DHS continues to pursue 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, subject employers must pay the fee 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 currently apply to extensions of stay or amended petitions. The proposed rule was previously slated for publication in May 2022 but is now scheduled to be published in October 2022.
Longer term regulatory plans
In addition to setting forth their near-term regulatory priorities, the immigration agencies also previewed their longer-term regulatory plans.
In particular, USCIS reiterated its longer-term plans to propose amendments to the L-1 regulations, to 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. A proposed L-1 rule is tentatively scheduled for June 2023.
Also on USCIS’s longer-term agenda is establishment of a “Known Employer Program,” under which qualifying employers would be able to request USCIS pre-adjudication of certain eligibility requirements for employment-based nonimmigrant and permanent resident petitions, in order to streamline the benefit application process for employers. The USCIS also has long-term plans to modernize and reform the H-2A and H-2B programs. No target dates have been set for release of these longer-term proposed regulations.
Proposed H-1B wage allocation rule dropped
DHS’s latest regulatory agenda indicates that the agency has no current plans to pursue a regulation to allocate H-1B cap numbers according to the DOL wage rate to be paid to the beneficiary. A Trump-era version of this regulation was invalidated by a federal court last year. Though the Biden Administration had indicated its support for wage-based cap allocation, a new proposed regulation on the issue is no longer on DHS’s 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 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.