By: Gladys Gervacio and Deepika Singh
The United States Departments of Homeland Security, Labor, and State have released new regulatory guidelines. These agendas outline each agency’s rulemaking priorities and timelines for the next few months.
The Department of Homeland Security (DHS) is pursuing a new proposed rule which would amend the H-1B process. The rule would alter the employer-employee relationship, regulate the Fraud Detection and National Security (FDNS) site visit program, and further clarify cap-gap benefits for F-1 students with a pending H-1B change of status. Other potential changes include clarifying when material changes to H-1B employment occur and require an amended H-1B petition and streamlining notification requirements to United States Citizenship and Immigration Services (USCIS) when an H-1B employee’s worksite location changes. The regulation was due for a December 2021 release but will now be published in May 2022.
DHS has also postponed policy which would allocate H-1B cap numbers by Department of Labor (DOL) wage rate paid to the beneficiary, with priority for individuals paid at the highest rate. This regulation was previously invalidated by a federal court and is facing a second ongoing legal challenge. It is likely the Biden Administration will no longer defend the rule and will instead settle the case. Another rule changing H-1B cap allocation could be possible in the future.
Another proposed rule slated for publication in May 2022 would expand the current $4,000/$4,500 border security fee to H-1Bs and L-1 extensions of stay. The extension would only affect employers with at least 50 US employees where more than 50% of employees are on H-1B or L-1 visa status.
At this time, businesses subject to the fee must pay it for initial and change of employer H-1B and L-1 petitions to USCIS, or for blanket L applications to US consulates. The current fee does not apply to extensions of stay or petition amendments.
The last regulation proposed by DHS would expand the premium processing program to include more employment-based immigration benefits, petitions, and other applications. Under the new regulation, the program would include:
The rule is currently under review by the Office of Management and Budget and should be published this month, after being delayed from its original September 2021 release.
The DOL’s agenda aims to increase the prevailing wage rates for H-1B, H-1B1, E-3, and PERM. A Trump-era rule is currently scheduled to go into effect on November 14, 2022, but the DOL recently agreed to a federal court ruling vacating the rule. Instead, the DOL is promoting a new prevailing wage policy informed by public feedback, which will likely be released in March 2022.
United States Immigration and Customs Enforcement (ICE) is developing a new regulation for the Form I-9 identity and employment authorization verification process. The new regulation could allow remote verification of Form I-9 in line with temporary COVID-19 regulations. The policy is planned for publication in June 2022.
A new regulation from USCIS would increase filing fees for petitions and applications, while new State Department policy would change filing fees for nonimmigrant visa applications and J-1 home residency requirement waivers. More information regarding the new fee schedule will be available once the proposals are published in March 2022 for USCIS and January 2022 for the State Department.
The State Department will also continue to support a rule that would stop the use of the B-1 visa in lieu of H-1B or H-3 visas. The initial proposal was published in 2020 by the Trump administration, with a publication date in January 2022. The State Department will not support another Trump-era B visa proposal that would have generally revised the criteria for B visas.
Most regulations will be published in proposal form before a 30- to 60-day period for public comment. The Biden Administration will need to then consider feedback received and pass the proposals for review by the Office of Management and Budget. It can take multiple months for proposals to be finalized, and interim and temporary final rules may be implemented in the meantime.
The process of proposing regulation, updating agendas, and publication is ongoing. The immigration professionals at Chugh, LLP will continue to monitor the situation and provide updates as needed.
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