Regulatory agenda set for coming months

9 Jan 23

UNITED STATES

Federal agencies have published their semiannual regulatory agenda, providing an indication of the Biden administration’s immigration priorities in the coming year.

Most of the proposed regulations were listed on previous regulatory agendas, though agency timelines have been adjusted in some cases. Highlights include:

  • H-1B requirements and oversight. The Department of Homeland Security plans to issue a proposed rule to “modernize” H-1B requirements and oversight and provide additional flexibility in the F-1 program. The changes may include:
    • Revising regulations related to the employer-employee relationship and providing flexibility for start-up entrepreneurs.
    • Implementing new guidelines for site visits.
    • Providing flexibility on start dates in limited circumstances.
    • Addressing “cap-gap” issues.
    • Strengthening the registration process to reduce the possibility of misuse and fraud.
    • Clarifying the requirement that an amended or new petition must be filed if there are material changes.

The regulatory agenda indicates the agency is targeting October 2023 to publish the proposal; the previous agenda had targeted May 2023.

  • Prevailing wage requirements. The Department of Labor is planning to publish a proposed rule to strengthen wage protections for the temporary and permanent employment of certain foreign nationals. According to DOL, the rule will establish a new wage methodology for setting prevailing wage levels for the H-1B/H-1B1/E-3 and PERM programs. The agency restarted the process to amend wage obligations after a federal court vacated the rule that was scheduled to take effect in November 2022. The agenda now indicates DOL is targeting September 2023 to publish the proposal.
  • Form I-9 physical examination. DHS plans to finalize a rule that would allow the agency to provide alternatives to physical document examination in some scenarios in the Form I-9 process. In August, DHS published a proposed I-9 rule and is targeting May 2023 to publish the final rule. Temporary Form I-9 flexibilities are currently set to expire July 31, 2023.
  • USCIS and State Department fees. USCIS is currently accepting public comments on a proposal to raise fees by a weighted average of 40 percent. The regulatory agenda does not include a timeline for publication of a final rule; USCIS must complete several steps before the proposal is implemented. The new fees will not take effect for several months and the agency could make changes in formulating the final rule. Last month, the State Department submitted a final rule to increase nonimmigrant and special visa application processing fees to the White House Office of Management and Budget. The text of the rule is not available, but OMB review is the last step in the rulemaking process before it can be published. The regulatory agenda indicates the State Department is targeting March 2023 to publish the final rule.

Additional Information: Other items on the regulatory agenda include a proposal to amend regulations governing adjustment of status (target publication July 2023) and a final rule on State Department’s interview wavier policy (target publication April 2023). The agenda no longer includes a Trump-era proposal to eliminate the “B-1 in lieu of H” classification. The Trump administration published a proposed rule to eliminate the classification but never published a final rule. The State Department previously said it was “reconsidering” the rule and appears to have abandoned it for now.

The full regulatory agenda is available here.

BAL Analysis: While the changes the administration has outlined would have significant impact on immigration programs, they are at different stages in the rulemaking process, and policies are still being formulated. Proposed regulations are subject to a public notice-and-comment period during which members of the public may submit feedback. BAL will provide updates on individual regulations as they move through the rulemaking process.

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

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