DHS sets regulatory agenda for coming months

22 May 19

UNITED STATES

The Department of Homeland Security (DHS) has released its semi-annual agenda, outlining the regulations it plans to propose and finalize in the coming months. The following are the administration’s key employment-based immigration priorities that are in the process of being developed or in the final stages of the rulemaking process.

Regulations to be proposed:

  • H-4 EAD rescission rule. This rule, which has not yet been published in the Federal Register, will revoke the 2015 regulation that allows certain H-4 spouses of H-1B visa holders to apply for employment authorization while awaiting their green cards. A proposed rule has not been published, but has been pending review with the Office of Management and Budget since February. Once the proposal is published, DHS will accept comments from the public before drafting and issuing a final regulation.
  • H-1B eligibility and wage protection. DHS plans to propose a rule that would revise the definition of specialty occupation, as well as the definition of employment and an employer-employee relationship. The rule will also propose additional requirements designed to ensure employers pay appropriate wages to H-1B visa holders.
  • USCIS fee increases. U.S. Citizenship and Immigration Services (USCIS) plans to issue a proposed regulation to increase filing fees for applicants and petitioners.
  • Limited period of stay for F-1 students. Immigration and Customs Enforcement (ICE) will propose to set a maximum period of stay for F-1 students and other nonimmigrants who, under current rules, are authorized to stay for the duration of their status.
  • H-1B registration fee. DHS will propose to charge a fee for H-1B registrations that will be required under the new regulation for FY 2021 petitions.
  • Biometrics expansion. DHS will propose to update its regulations to eliminate multiple references to specific biometric types, and to allow for the expansion of the types of biometrics required to establish and verify an identity.
  • Adjustment of status changes. DHS plans to propose changes to procedures for adjustment of status filings.
  • Visa security fee. ICE intends to propose that visa applicants pay a fee to fund the Visa Security Program that vets and screens visa applicants. The program is currently funded through appropriations.

Regulations in the final stages:

  • ESTA for visa-waived travelers entering by land. DHS will require nationals who are visa-waived under the Visa Waiver Program and entering the U.S. by land, to complete online registration through the Electronic System for Travel Authorization before traveling. Under current regulations, visa-waived nationals entering through land borders fill out an I-94W arrival/departure form at the border. An interim final rule is expected in October.
  • Digital USCIS processing. USCIS plans to introduce end-to-end electronic submission and processing of immigration petitions and applications. See details here.
  • Inadmissibility on public charge grounds. DHS issued a proposed rule on Oct. 10, 2018 that would significantly expand denials of visas or green cards where the applicant is deemed likely at any time to become a public charge. The agency is reviewing the public comments and expects to issue a final rule in September.
  • Fee increases for Student and Exchange Visitor Program. DHS will finalize fee increases for international students, exchange visitors and schools certified by the Student and Exchange Visitor Program. Among the changes, the fee for schools seeking initial SEVP certification will increase from $1,700 to $3,000 and recertification will cost $1,250. The final rule will be published in the Federal Register and the new fees will take effect June 24, 2019.
  • Elimination of International Entrepreneur Parole Rule. DHS is in the final stages of rescinding the Obama-era International Entrepreneur Parole Rule that allowed qualifying start-ups and entrepreneurs to remain in the U.S. to grow their businesses and create jobs. The agency proposed the rescission rule in May 2018 and a final rule is expected in October.

BAL Analysis: The regulations are in various stages of the rulemaking process, and it normally takes a minimum of three months after a proposed regulation is published before a final rule is issued. Proposed regulations are subject to a public notice and comment period during which members of the public may submit feedback. DHS is required to review and consider the comments before drafting and releasing a final regulation. Employers are encouraged to work with BAL to plan for upcoming changes and to provide comments to DHS to help shape final immigration regulations. BAL is monitoring the regulatory agenda and will provide clients with updates on individual regulations as they progress through the rulemaking process.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@balglobal.com.

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