The U.S. government has published its semi-annual regulatory agenda, offering an indication of the Biden administration’s top immigration priorities in the coming months.

  • H-1B program. The U.S. Department of Homeland Security (DHS) 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 May 2022 to publish the proposal. The previous DHS agenda had targeted December 2021 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.
  • Prevailing Wage Requirements. The U.S. Department of Labor (DOL) is planning to publish a notice of proposed rulemaking to strengthen wage protections for the temporary and permanent employment of certain foreign nationals. According to the 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 is restarting the process to amend wage obligations after a federal court vacated the rule that was scheduled to take effect in November. The agenda indicates the DOL is targeting March 2022 to publish the proposal.
  • Entry-Exit Fees. DHS intends to publish a notice of proposed rulemaking to provide that 9-11 Response Fees will apply to all H-1B and L-1 extension petitions filed by certain employers, in addition to all previously covered H-1B and L-1 petitions. The agency is aiming to publish the proposal in May 2022.
  • USCIS fees. DHS plans 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 aiming to publish a notice of proposed rulemaking in March 2022 to rescind and replace the Aug. 3 rule and “establish new USCIS fees to recover USCIS operating costs.”
  • Form I-9 Physical Examination. DHS plans to publish a notice of proposed rulemaking to provide an optional alternative to physical examination in the Form I-9 employment eligibility verification process. According to DHS, the rule will allow the authorization of “alternative document examination procedures under 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 June 2022 to publish the proposal.
  • B-1/B-2 visas. The State Department plans to publish a final rule that will eliminate language from the regulations that allow consular officers to issue a B-1, business visitor visa to certain applicants who are classifiable as H-1B or H-3 nonimmigrants. In its proposed rule, the State Department confirmed that B-1 visas will continue to be issued to foreign nationals seeking to engage in permissible business activities, irrespective of whether the applicant might qualify for an H visa. The publication of the rule is currently slated for January 2022.

Additional Information: 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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