DHS sets regulatory agenda for coming months

The Department of Homeland Security (DHS) published its semi-annual regulatory agenda last week, offering a glimpse of some of the Biden administration’s top immigration priorities in the coming months.

Key employment-based immigration regulations:

• H-1B program. DHS plans to issue a proposed rule to “modernize” H-1B requirements and oversight and provide additional flexibility in the F-1 program. The regulatory agenda indicates the agency is targeting December 2021 to publish a proposal. According to DHS, the proposed rule would:
  • Revise regulations related to the employer-employee relationship.
  • Implement new guidelines for site visits.
  • Provide flexibility on start dates in limited circumstances.
  • Address “cap-gap” issues.
  • Clarify the requirement that an amended or new petition be filed if there are material changes.

• USCIS fees. DHS is planning to adjust fees that U.S. Citizenship and Immigration Services (USCIS) charges for immigration services. The agency published a regulation to increase filing fees on Aug. 3, 2020, but a court blocked the fees from taking effect. DHS is now planning a proposed rule to rescind and replace the Aug. 3 rule and “establish new USCIS fees to recover USCIS operating costs.” DHS said it aims to issue a proposed rule in November 2021.
• Deferred Action for Childhood Arrivals (DACA). The agency is planning to publish a proposed rule in August to “to preserve and fortify” DACA. In January, President Joe Biden issued a memorandum ordering DHS to take steps to protect DACA and DHS says it intends to do so through the rulemaking process. DACA continues to face challenges in court; more information is available here.
• Premium Processing. DHS is preparing a final rule that would expand premium processing to additional benefit requests and set premium processing fees for those request types. In October, Congress passed a short-term funding bill that contained changes to premium processing, including increasing fees and giving USCIS authority to expand premium processing to additional petition types designated in the law. DHS is targeting September to publish a final rule in this regard in September.

Additional Information: The full DHS regulatory agenda is available here.

BAL Analysis: While the regulations would have significant impact on key 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. DHS is required to review and consider the comments before drafting and releasing a final regulation. Normally, it takes several months after a proposed regulation is published before a final rule is issued, and most final rules do not take effect immediately upon publication. BAL continues to monitor the regulatory agenda and provide clients with 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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