At a glance
- U.S. Citizenship and Immigration Services (USCIS) has delayed to December 2024 the publication of a final rule implementing the second phase of its H-1B program modernization plan, which is expected to include the revision of key H-1B program terms and address F-1 cap-gap protections, among other changes.
- A USCIS proposal aimed at improving several aspects of the adjustment of status process – including clarifying age-out policies and addressing employment authorization challenges – is slated for August 2024.
- U. S. Customs and Border Protection is moving ahead with its plan to impose the $4,000 or $4,500 9-11 Response fee on a larger number of H-1B and L-1 petitions, with a final rule scheduled for April 2025.
The issue
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.
Department of Homeland Security
Further H-1B program modernization. One of the most highly anticipated DHS regulations is the second phase of a final rule to modernize the H-1B program. Earlier this year, U.S. Citizenship & Immigration Services (USCIS) published and implemented the first part of the rule, which shifted the annual H-1B cap lottery to selection by beneficiary rather than by registration and established new measures to strengthen H-1B cap fraud prevention. The second phase of the final rule is expected to enhance cap-gap protections for F-1 students awaiting a change of status to H-1B, revise the definition of an H-1B specialty occupation, broaden the Fraud Detection and National Security site visit program, and codify a longstanding policy requiring USCIS adjudicators to give deference to prior agency adjudications. The final rule is slated for publication in December 2024.
Improvements to H-2A and H-2B temporary worker programs. The Department of Homeland Security (DHS) is planning to finalize a regulation that, as proposed, would add new H-2A/B employer obligations and worker safeguards and would provide new and expanded grace periods before and after petition validity, after cessation of employment, and following revocation of an approved petition. The regulation is also expected to provide a worker the ability to begin new H-2 employment upon the proper filing of an extension of stay petition, rather than requiring them to await petition approval. In addition, the final rule could grant USCIS the authority to approve H-2 petitions for nationals of countries beyond those specifically designated by DHS. The final rule is slated for November 2024.
Automatic extension of employment authorization for certain EAD renewal applicants. In April 2024, DHS published a temporary final rule that lengthened the automatic extension of work authorization for certain employment authorization document (EAD) renewal applicants to 540 days from EAD expiration, up from 180 days. Under the temporary rule, the 540-day auto-extension is set to revert back to 180 days on September 30, 2025, but DHS sought public comments on whether to make the longer extension permanent or whether to implement another duration or other measures to minimize employment authorization gaps for EAD renewal applicants. The agency is currently considering those comments and has slated a final regulation for publication in December 2024, though the specific contents of that regulation are not yet known.
Exit biometrics. DHS is planning to publish a final regulation that will broaden its authority to collect biometrics from certain noncitizens on departure from the United States. Under current law, DHS is required to develop and implement an integrated, automated entry and exist data system that includes biographic data and biometrics of noncitizens, but existing regulations only authorize DHS to collect such data and biometrics through pilot programs and at land ports of entry and a limited number of airports and seaports. DHS plans to remove these limitations and enhance requirements for photographs of noncitizens on entry and departure. The final regulation is scheduled for December 2024.
Expansion of the H-1B/L-1 border security fee. DHS plans to finalize a regulation to expand the U.S. Customs and Border Protection (CBP) 9-11 Response and Biometric Entry-Exit fee (9-11 Response fee) imposed on employers with more than 50 employees in the United States in H-1B or L-1 status, more than 50 percent of whom are in H-1B or L-1 nonimmigrant status. Currently, H-1B and L-1 petitions filed by these employers are required to include the additional $4,000 (H-1B) or $4,500 (L-1) 9-11 Response fees only in petitions for an initial grant of H-1B or L-1 status or a change of employer in the same status (including where an extension of stay is requested). The forthcoming rule will expand the fee to extensions of stay filed by subject employers. It is slated for publication in April 2025.
Proposed adjustment of status process improvements. DHS is planning to propose a regulation to improve various aspects of the adjustment of status process, including clarifying when a visa becomes available for purposes of age-out protections under the Child Status Protection Act, permitting the agency to grant employment authorization to derivative beneficiaries with compelling circumstances who are awaiting immigrant visa availability, and clarifying travel authorization for persons granted Temporary Protected Status. The proposed rule is slated for publication in August 2024.
Other planned DHS regulatory activity. DHS is planning a final regulation to notify the public of required automatic increases in investment and revenue minimums for the International Entrepreneur Parole Program, slated for August 2024.The agency is also planning a proposed regulation that is expected to contain provisions on employment authorization for dependent spouses, increased flexibilities for nonimmigrants who resign or are terminated from employment, and improvements to EAD policies and procedures, slated for a notice of proposed rulemaking in January 2025.
Department of State
Proposed DV Program Amendment. The State Department plans to propose an amendment to Diversity Visa (DV) immigrant visa regulations that would require applicants to provide valid, unexpired passport information in their online diversity visa registration form. The proposal is slated for publication in December 2024, delayed from February 2024.
IV Appearance Waiver. The agency also still plans to issue a final rule that would permit a waiver of the requirement for immigrant visa applicants to appear before a consular officer. Details of the rule, including eligibility parameters, are not yet known. After being postponed more than once over the last year, the rule is now slated for publication in October 2024.
Proposed Public Charge Rule. The State Department plans to issue a proposed rule on public charge inadmissibility in August 2024, codifying current practice and aligning State Department legal authority with the current DHS public charge rule. The proposal would also affirm the longstanding policy that consular officers should use a "totality of circumstances" approach to public charge determinations.
Department of Labor
Proposed Revisions to Schedule A. The Department of Labor (DOL) has set an August 2024 target date to complete its review and analysis of the comments received in response to its December 2023 request for public feedback on a possible expansion of the list of occupations exempt from the PERM labor certification process. The list of labor-certification-exempt occupations – known as "Schedule A" – currently covers certain professional nurses, physical therapists, and foreign nationals of exceptional ability in the sciences and arts, and DOL is considering possible expansion of the list to include STEM-related and other occupations for which U.S. workers are considered to be in short supply. Once DOL completes its analysis of the public comments, the agency will then decide whether to issue a proposed rule to amend Schedule A, which would provide an additional opportunity for public comment on any proposed changes to Schedule A.
Proposed Updates to H-2B Program. DOL has reconfirmed its plans to update the regulations governing the H-2B temporary and seasonal worker program, including the H-2B prevailing wage rules, the temporary labor certification process, and enforcement of H-2B employer obligations. The proposed rule, which had previously been slated for release in October 2024, is now projected for publication in April 2025.
Regulatory timelines and potential impact of a change in administration
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 the rule 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.
The result of the upcoming U.S. presidential election could also impact implementation of rules on the new regulatory agenda. Should a new U.S. president take office in January 2025, federal agencies under the new administration may abandon some or all proposed rules in the regulatory pipeline and, in some cases, may suspend implementation of newly issued final rules. Agencies could also seek to vacate issued rules through administrative means or, in limited circumstances, through Congress; regulations that align with a new administration's interests could be retained. A new administration would also be expected to introduce new rules that reflect the new president's policy priorities.
Fragomen is closely monitoring the progress of anticipated regulations. If your organization wishes to advocate in connection with a regulation, please contact your designated Fragomen professional or the firm's Government Strategies and Compliance Group.
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.