Spring regulatory agendas set priorities for coming months

The U.S. government has published its semiannual regulatory agendas, offering an indication of the Biden administration’s top immigration priorities in the coming months. Many of the proposed regulations were listed on previous regulatory agendas, though agency timelines for publication have been adjusted.

• H-1B program. The U.S. Department of Homeland Security plans to publish a notice of proposed rulemaking 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 2023 to publish the proposal. The previous agenda had targeted May 2023 for publication. According to DHS, the rule will:
  • 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.
  • Strengthen the registration process to reduce the possibility of misuse and fraud.
  • Clarify the requirement that an amended or new petition be filed if there are material changes.
• USCIS fees. DHS plans to adjust fees that U.S. Citizenship and Immigration Services charges for immigration services. In January 2023, USCIS published a proposal that would raise fees for immigration benefit requests by a weighted average of 40%. In response, USCIS received nearly 8,000 comments from the immigration and business community regarding the proposed fee hikes. USCIS has said the increased fees would allow the agency “to more fully recover its operating costs, reestablish and maintain timely case processing, and prevent the accumulation of future case backlogs.” DHS is aiming to publish the final fee rule in March 2024.
• 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. According to DHS, the rule will allow the authorization of “alternative document examination procedures in certain circumstances or with respect to certain employers” in hopes of reducing burdens on employers and employees while preserving the integrity of the employment verification process. The agenda indicates DHS is targeting August 2023 to publish the final rule. The previous agenda had targeted May 2023 for publication.

Additional Information: The Department of Labor moved a proposed rule regarding PERM and H-1B wage protections to the long-term regulatory agenda and is now targeting a publication date of June 2024. Other items on the regulatory agenda include a proposal to modernize and reform the H-2A and H-2B programs (target publication date of September 2023). The full regulatory agenda is available here.

BAL Analysis: While the regulations 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 continues to monitor the regulatory agenda and will 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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