On the Horizon in US Immigration | Practical Law

On the Horizon in US Immigration | Practical Law

On December 6, 2023, federal agencies published their semiannual regulatory agendas. These agendas give us a peek at what executive agencies plan to accomplish by rulemaking in the coming months.

On the Horizon in US Immigration

Practical Law Article w-041-8387 (Approx. 7 pages)

On the Horizon in US Immigration

by Practical Law Labor & Employment
Published on 08 Jan 2024 • USA (National/Federal)
On December 6, 2023, federal agencies published their semiannual regulatory agendas. These agendas give us a peek at what executive agencies plan to accomplish by rulemaking in the coming months.
On December 6, 2023, federal agencies published their semiannual regulatory agendas. These agendas provide information about some of the significant rules executive agencies plan to accomplish in the coming months. Including the planned actions in the regulatory agenda does not guarantee that the action will be initiated, but it does provide employers and their counsel with an inside view at what each agency believes is its top priorities.
Agencies with the greatest impact on US immigration include:
  • The Department of Homeland Security (DHS) and its subagencies, including:
    • US Citizenship and Immigration Services (USCIS);
    • US Customs and Border Security (CBP); and
    • US Immigration and Customs Enforcement (ICE).
  • The DOL.
  • The Department of State (DOS).

Initiated Actions

  • USCIS: Changes to the USCIS fee schedule and other benefit request requirements. A final rule is expected in April 2024. A proposed rule was published on January 4, 2023 (88 Fed. Reg. 402 (Jan. 4, 2023); a correction was published on January 9, 2023 (88 Fed. Reg. 1172 (Jan. 9, 2023)). The proposal:
    • includes significant fee increases for employment-related petitions and applications;
    • establishes separate fees for most nonimmigrant classifications covered by Form I-129, Petition for a Nonimmigrant Workers;
    • incorporates biometrics costs into the main benefit fee and removes the separate biometric services fee;
    • changes the premium processing timeframe from 15 calendar days to 15 business days; and
    • sets lower fees for certain forms filed online.
  • DOS: Domestic visa renewal pilot program for certain H-1B visa holders. A notice initiating the pilot program was published on December 21, 2023 (88 Fed. Reg. 88467 (Dec. 21, 2023)). DOS will accept applications under the pilot program between January 29 and April 1, 2024.
  • USCIS: Modernizing H-1B requirements, adding flexibility in the F-1 program, and some other nonimmigrant changes. A notice of proposed rulemaking (NPRM) was published on October 23, 2023. Among others, the NPRM includes proposals that:
    • modernize the H-1B classification by clarifying certain definitions and requirements, when amended petitions are required, and the agency's deference policy;
    • increase other flexibilities by revising the H-1B cap exemptions and automatic extension of employment authorization for F-1 students with an approved H-1B cap-subject petition (cap-gap coverage);
    • amending the H-1B registration system to streamline the selection process and reduce the potential for fraud; and
    • amend provisions to ensure there is a bona fide job offer for a specialty occupation, redefine the employer-employee relationship, amend site visit requirements, and amend third-party placement rules.
    (88 Fed. Reg. 72870 (Oct. 23, 2023).)
  • CBP: Implementing ESTA at US land borders. A final rule expected in August 2024. An interim final rule was published on April 1, 2022 and effective May 5, 2022 (87 Fed. Reg. 18967 (Apr. 1, 2022)).
  • DOL: Updating Schedule A to include occupations in sciences, technology, engineering, and mathematics (STEM). DOL's Office of Foreign Labor Certification (OFLC) published a request for information (RFI) seeking information from stakeholders about updating the PERM Schedule A regulations to include additional occupations in STEM and non-STEM occupations on December 21, 2023 (88 Fed. Reg. 88290 (Dec. 21, 2023)). Comments will be accepted until February 20, 2024.

Planned Regulatory Actions

  • USCIS: Modernizing regulations governing nonimmigrant workers. A proposed rule is expected in October 2024. USCIS proposes to amend its regulations governing certain nonimmigrant workers to:
    • update the employment authorization rules for dependent spouses of certain nonimmigrants;
    • increase flexibilities for certain nonimmigrant workers, including those who resign or are terminated from employment and religious workers who have reached their maximum period of stay or are waiting for immigrant visas to become available; and
    • modernize policies and procedures for employment authorization documents (EADs).
  • USCIS: Petition for Immigration Worker (Form I-140) reforms. A proposed rule is expected in August 2024. USCIS proposes to amend its regulations governing employment-based immigrant petitions in the EB-1, EB-2, and EB-3 classifications to:
    • codify current policy guidance and implement administrative decisions about successorship-in-interest and ability to pay;
    • modernize outdated provisions for individuals of extraordinary ability (EB-1-1) and outstanding professors and researchers (EB-1-2);
    • clarify evidentiary requirements for EB-1 classifications, EB-2 national interest waiver (NIW) classifications, and physicians of national and international renown;
    • implement reforms to ensure the integrity of the I-140 program; and
    • correct errors and omissions.
  • USCIS: Improving regulations governing the adjustment of status to lawful permanent residence and related immigration benefits. An NPRM is expected in March 2024. USCIS proposes to amend its regulations to:
    • permit concurrent filing of a visa petition and the application for adjustment of status for the EB-4 classification for certain special immigrants including religious workers;
    • permit transferring the underlying basis of a pending adjustment of status application;
    • amend the definition relating to ineligibilities under section 245(c) of the INA;
    • clarify when a visa becomes available for purposes of the age calculation under the Child Status Protection Act;
    • authorize compelling circumstances employment authorization for certain derivative beneficiaries waiting for immigrant visa availability; and
    • clarify the impact on the adjustment of status eligibility of temporary protected status (TPS) and travel authorization.
  • USCIS: Citizenship and naturalization and other related flexibilities. A proposed rule was expected but not promulgated in December 2023. USCIS proposes to amend its regulations to:
    • clarify the testing requirements;
    • update eligibility requirements;
    • clarify definitions;
    • remove certain outdated provisions; and
    • align with current statutory framework, such as updating the adoption-related regulatory provisions consistent with the Intercountry Adoption Universal Accreditation Act of 2012.
  • DOS: Public charge ground of inadmissibility. A Notice of proposed rulemaking is planned in April 2024 to revise the regulations governing the public charge ground of visa ineligibility at 22 CFR § 40.41 to make them consistent with Executive Branch policy and to administer the grounds consistently with the DHS.
  • DOS: Exchange visitor program: A final rule on general provisions is expected during 2024, based on comments received in response to an interim final rule published on March 28, 2023 and effective on April 27, 2023 (88 Fed. Reg. 18249 (Mar. 28, 2023)).
  • CBP: 9/11 response and biometric entry-exit fees for H-1B and L-1 visas (also known as border security fee). An NPRM is expected in April 2024 to clarify and extend the fees to all relevant H-1B and L-1 extension petitions. (The fees apply to H-1B or L-1 petitioning employers that employ 50 or more employees in the US if more than 50% of the petitioner's employees in the aggregate are in H-1B, L-1A or L-1B nonimmigrant status.)
  • DOS: Diversity visas (DV). An NPRM is expected in February 2024. DOS proposes to require DV petitioners to provide valid, unexpired passport information on their electronic entry form.

Planned Guest Worker Actions

Both USCIS and the DOL have actions planned to address the agricultural and non-agricultural guest worker programs (the H-2A and H-2B nonimmigrant visa classifications). The proposals may significantly impact both programs. These actions include:
  • USCIS: Modernizing H-2 Program requirements, oversight, and worker protections. An NPRM was published on September 20, 2023 (88 Fed. Reg. 65040 (Sept. 20, 2023)). The proposal incorporates new policies that, if finalized, would:
    • produce program efficiencies;
    • address current aspects of the program that may unintentionally result in exploitation or other abuse of persons seeking to come to this country as H-2A and H-2B workers;
    • builds on existing protections against prohibited payments or other fee assessments or salary deductions by H-2A and H-2B employers in connection with recruitment or H-2 employment; and
    • adds protections for workers.
  • DOL: Temporary employment of H-2B foreign workers in the US. A joint NPRM with USCIS is planned for October 2024. DOL and USCIS propose to update the H-2B visa program regulations at 20 CFR part 655, subpart A, the related prevailing wage regulations at 20 CFR § 656, and 8 CFR § 214 governing the certification of the employment of H-2B non-immigrant workers in temporary or seasonal non-agricultural employment and the enforcement of the obligations applicable to employers of these nonimmigrant workers and US workers in corresponding employment to
    • update the process used by employers seeking to employ H-2B workers to obtain temporary certification from DOL; and
    • establish standards and procedures for employers seeking to hire foreign temporary non-agricultural workers for certain itinerant job opportunities, including entertainers, tree planting, and utility vegetation management.
  • DOL: Employer-provided survey wage methodology in the H-2B program. A proposed rule is expected in January 2024. The proposal would cure a procedural defect in the 2015 H-2B wage rule regarding the employer-provided wage survey for failing to satisfy the notice and comment requirements under the Administrative Procedure Act (APA), identified as deficient in Williams v. DOL, (D.D.C. Dec. 23, 2022).
  • DOL: Improving protections for workers in temporary agricultural employment in the US. A final rule expected in April 2024. An NPRM was published on September 15, 2023 (88 Fed. Reg. 63750 (Sept. 15, 2023)). The proposal sought to strengthen protections for temporary agricultural workers in H-2A nonimmigrant status and enhance the DOL's capacity to monitor program compliance and take necessary enforcement actions against program violators.