United States: DHS Spring Regulatory Agenda Projects Changes To H-1B Visas, The Rescission Of H-4 Work Authorization, Increased Fees, And More

The Department of Homeland Security (DHS) has released its spring 2019 regulatory agenda, highlighting the agency's rulemaking priorities through 2019. While many of the agenda items appear to be carryovers from agendas past, they serve as continuing reminders of the Trump administration's immigration-related goals. The following list includes regulations, either anticipated or proposed, that are likely to affect employment-based immigration if implemented.

Anticipated Regulations – Not Yet Formally Introduced

Ending H-4 Work Authorization. After years of anticipation, DHS is expected to formally publish its proposal to rescind the H-4 employment authorization program. DHS submitted its proposed rule to the Office of Management and Budget for review in February 2019. Details regarding how DHS plans to unwind the program are not yet known, but the proposed rule will probably be published soon in the Federal Register.

H-1B Electronic Registration System Fee. One of the few new agenda items to appear this spring is DHS's proposal to collect a filing fee from employers that participate in the newly introduced (but not-yet-implemented) H-1B cap electronic registration system. The original rule, which was introduced in January 2019, was silent as to filing fees. The additional fee means that the total cost of filing an H-1B quota petition will increase as there will be an electronic registration fee to enter the lottery, as well as a fee to submit the actual application if selected in the lottery.

H-1B Eligibility and Wages – DHS is expected to propose revised definitions of "specialty occupation," "employment," and "employer-employee relationships" as they apply to H-1B visa eligibility. "Specialty occupation" is defined in the Immigration and Nationality Act. It is therefore not clear how much DHS will be able to revise the definition as only Congress has the ability to amend the statute. The rule is also expected to include new employer requirements to ensure H-1B visa holders are paid appropriate wages.

Expansion of Electronic Filing – DHS is expected to continue its push toward the use of electronic filing to process requests for immigration benefits.

ESTA – DHS is seeking to use the Electronic System for Travel Authorization (ESTA) for foreign nationals from Visa Waiver Program (VWP) countries who seek to enter the United States through a land port of entry. ESTA would be used in lieu of Form I-94W (Arrival/Departure Record). This change has already been implemented for travelers from VWP countries who seek to enter the United States at air or sea ports of entry.

USCIS Fee Increases – DHS is expected to propose fee increases sometime in late summer 2019. U.S. Citizenship and Immigration Services (USCIS) last increased fees in December 2016.

Visa Security Fee – Immigration and Customs Enforcement (ICE) is expected to introduce a new fee to be paid by visa applicants in order to fund the Visa Security Program (VSP), which is responsible for the vetting and screening of visa applicants. The collected fees would be used to expand VSP and enhance the program's ability to investigate potential threats to the United States.

Ending Concurrent Filing of the I-485 – DHS is projected to propose a rule that would end the practice of filing Form I-485 concurrently with an immigrant visa petition when applying for adjustment of status. No further details have been provided on how the change would be implemented. Eliminating the ability to file concurrently could have significant consequences for applicants who are running short on time and would need an adjustment-based Employment Authorization Document card in order to maintain work authorization (or those who simply need to file an I-485 application in order to maintain lawful status).

Establishing a Maximum Period of Stay for F-1s – ICE is expected to propose a rule that allows certain categories of nonimmigrant visa holders to enter the United States for a set maximum period of stay. This change would be consistent with the Trump administration's focus on curbing visa overstays in the United States. Currently, F-1 student visa holders are admitted for an indefinite "duration of status" and can only be found to have overstayed once a formal determination has been made that there has been a status violation.

Proposed Regulations – Pending Final Publication

Redefining Public Charge – In October 2018, DHS published a proposed rule redefining public charge as grounds for inadmissibility. The final rule is expected to be published in September 2019.

It is worth noting that the administrative rulemaking process can be lengthy by design. Even once a proposed rule is published in the Federal Register, it may take many months before it reaches the final rule stage, and even longer until it is implemented. In many instances, proposed rules require a period for public comment (often 30–60 days), followed by a reasonable period of time for the sponsoring agency to review and address those comments. In other words, even if DHS is ready to move forward with the rules listed on its agenda, it will likely take some time before those rules take effect, if at all.

Ogletree Deakins' Immigration Practice Group will continue to monitor developments with respect to the proposed regulations and will post updates on our immigration blog as additional information becomes available.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.