DHS regulatory agenda includes sweeping changes to legal immigration routes

22 Nov 19

UNITED STATES

The Department of Homeland Security has published its semi-annual regulatory agenda that includes plans for sweeping changes to H-1B and L-1 visas and other legal immigration routes in the coming months.

Key employment-based immigration priorities:

  • H-1B visas. By the end of 2019, DHS plans to propose revisions to the definition of “specialty occupation” to “increase focus on obtaining the best and brightest” foreign H-1B candidates, and revisions to the definition of employment and the employer-employee relationship “to better protect U.S. workers and wages.” The agency will also propose additional requirements designed to ensure employers pay appropriate wages to H-1B visa holders.
  • H-4 EAD rescission rule. The agency continues to pursue rescission of the current rule that allows certain H-4 spouses to apply for Employment Authorization Documents (EADs). A proposed rescission rule has been pending with the Office of Management and Budget since February. The new target date for a proposed rescission regulation is March 2020.
  • L-1 visas. DHS plans to propose revisions to the definition of specialized knowledge, to clarify the definition of employment and employer-employee relationship, and ensure employers pay appropriate wages to L-1 visa holders. The target date for this proposal is September 2020.
  • USCIS filing fees. DHS has proposed a new fee schedule for petitions and applications to U.S. Citizenship and Immigration Services and will accept comments on the proposal until Dec. 16. The proposal would introduce separate Form I-129 petitions for various nonimmigrant visa categories, each with its own fee. Currently, the Form I-129 covers all nonimmigrant worker categories and the fee of $460 is the same for all types. Under the proposal, the filing fee for an H-1B petition would be $560 (a 22% increase), and for L-1 petitions $815 (a 77% increase). The proposed regulation also contains a host of other changes, including lengthening the premium processing time to 15 business days instead of 15 calendar days.
  • Students and Exchange Visitors.
    • OPT. Immigration and Customs Enforcement intends to amend regulations to revise the practical training options available to nonimmigrant students on F and M visas. The target date for a proposed regulation is August 2020.
    • Maximum period of stay. ICE plans to set maximum periods of stay for students and exchange visitors and to eliminate the grant of stay based on their “duration of status.” This proposal is targeted for February 2020.
    • Vetting of designated school officials. ICE plans to vet all designated school officials and responsible officers to ensure the government has access to accurate data on students and exchange visitors. This proposal is targeted for June 2020.
  • Green card applicants. DHS will propose regulations to eliminate concurrent filing of visa petitions and adjustment of status (green card) applications and make further changes to the dates when applicants can file for adjustment of status. The target date for proposed regulations is April 2020.
  • Business Visitors. DHS intends to clarify visa criteria for foreign visitors coming to the U.S. as B-1/B-2 business and leisure visitors. The target date for proposed amendments is August 2020.
  • Unlawful presence. USCIS plans to propose a regulation to “enhance the integrity of” unlawful presence inadmissibility provisions. The administration previously issued a policy memorandum that changed the way unlawful presence was calculated for foreign students and exchange visitors, but implementation was blocked by a federal court. The target date for a proposed regulation is September 2020.
  • Mandatory e-filing. DHS plans to propose mandatory electronic filing of certain immigration petitions and applications and changes to existing regulations to allow end-to-end electronic processing. The target date for proposed rules is December 2019.

BAL Analysis: DHS has set out an aggressive 2020 agenda to further tighten key immigration routes for foreign high-skilled workers. It is not clear at this time whether the agencies will be able to meet their targeted timelines, as several of these items have been on previous regulatory agendas but have not yet been proposed. It is important to note that current rules remain in place today, and after proposing a regulation, federal agencies typically allow the public to submit comments for 30 to 60 days. They must then consider the comments submitted in finalizing a regulation. BAL is closely monitoring the progress of these agenda items and will provide updates on developments.

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

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