United States: Federal Immigration Agencies Release Spring 2019 Regulatory Agendas

At a glance

• The Department of Homeland Security is moving forward with plans to toughen H-1B eligibility criteria, rescind the H-4 employment authorization program and make changes to the EB-5 program.
• DHS plans to impose a new filing fee on employers who use the forthcoming H-1B cap registration system.  Both DHS and the State Department are expected to propose fee increases for immigration filings generally.
• A forthcoming proposed rule seeks to eliminate the concurrent filing of immigrant visa petitions and adjustment of status applications.

A closer look

The Department of Homeland Security, Department of State and Department of Labor have announced their Spring 2019 regulatory agendas, which disclose each agency’s immigration rulemaking priorities for the coming six months.

When and if finalized, these rules could significantly impact the H-1B and EB-5 programs, H-4 employment authorization, and adjustment of status filing procedures, among other programs and procedures.

The following summarizes key employment-based items on the agencies’ immigration agendas. In all cases, the details of proposed and final regulations are confidential until released for publication and are subject to change.

H-1B and H-4 programs

• Termination of the H-4 employment authorization program. A long-awaited proposal to rescind a program that permits certain H-4 spouses to apply for employment authorization is projected to be published as early as this month, with an expected 30- to 60-day public comment period.  The proposal is currently undergoing Office of Management and Budget (OMB) review. The details of the proposed rule – including whether currently valid H-4 EADs will remain valid until their expiration – are not yet known.  If the proposed rule is published as scheduled, DHS could publish a final regulation to rescind the H-4 EAD program as early as Fall 2019.
• H-1B eligibility criteria and wage requirements.  A proposal to revise the definition of an H-1B specialty occupation to “increase focus on obtaining the best and brightest foreign nationals” is slated to be published for public comment in August 2019. The rule is expected to revise the definitions of “employment” and “employer-employee relationship,” with a likely focus on restriction of offsite placement of H-1B workers.  The proposal is also anticipated to address H-1B wages.
• H-1B cap registration fee. In a new development, DHS plans to propose a filing fee for the upcoming H-1B cap registration program, in addition to existing H-1B filing fees. The fee proposal is expected in July 2019 and is likely to be in place when the new cap registration system opens in early 2020.

EB-5 program

• EB-5 modernization rule. A final rule to raise minimum investment amounts for the EB-5 program, among other changes, has an updated anticipated publication date of May 2019, and could be published soon. The rule is currently undergoing OMB review. It had most recently been slated for publication in November 2018.
• EB-5 Immigrant Investor Regional Center changes. A proposal to change the way EB-5 Regional Centers are designated has an updated anticipated publication date of March 2020. The proposed rule was originally scheduled for publication in March 2019.
• EB-5 Immigrant Investor Program realignment. An advance notice of proposed rulemaking will seek public comment on monitoring and oversight of the EB-5 program as well as encouragement of investment in rural areas in advance of a broader proposal to alter the program. The advance notice has a revised publication date of March 2020. The notice was originally slated for September 2019.

Green card processing

A proposal to change the way adjustment of status applications are processed remains slated for publication in September 2019. The proposal seeks to discontinue the concurrent filing of adjustment of status applications with Form I-140 immigrant visa petitions and other preference petitions. This proposal would have a significant impact on employment-based green card applicants, including delaying the filing of applications for adjustment-based employment authorization and advance parole documents.

Student and related visa programs

A proposal by Immigration and Customs Enforcement to modify the period of authorized stay for certain F-1 foreign students and other nonimmigrants from duration of status (D/S) to a specified end date, now has an updated publication date of February 2020. It was originally slated for publication in September 2019. Also, a final rule to increase Student and Exchange Visitor Program (SEVP) fees payable by F, M and J nonimmigrants and by schools admitting foreign students, will be published on May 23, 2019. The rule is set to take effect on June 24, 2019.

An ICE proposal to revise practical training rules for F and M foreign students was removed from the DHS regulatory agenda last fall, but it remains on the agency’s list of long-term regulatory actions. The proposal could seek restrictions on 12-month optional practical training (OPT), STEM OPT extensions, and Curricular Practical Training (CPT).

H-2B program

DOL and DHS plan joint amendments to regulations governing the H-2B temporary nonagricultural worker program. As proposed in 2018, the rules would modernize employers’ U.S. worker recruitment requirements, including elimination of print advertising. Final regulations are slated for publication in June 2019.

Business visitor eligibility criteria

The State Department plans to propose a rule concerning eligibility for B-1/B-2 business visitor and tourist visas, slated for publication in October 2019. The regulation could seek to limit permissible business visitor activities, among other criteria. The proposal enters the State Department regulatory agenda weeks after President Trump ordered federal agencies to curb B-1/B-2 visa overstays.

A DHS proposal to amend B-1/B-2 regulations to clarify classification criteria was removed from the agency’s near-term agenda and placed on its Spring 2019 long-term action list. In Fall 2018, the proposed rule was scheduled for publication in September 2019. At this time, it is estimated for August 2020.

Fee increases

DHS intends to propose increases to USCIS filing fees; the revised anticipated publication date for a proposed rule is August 2019. In addition, the Department of State intends to increase consular filing fees, including nonimmigrant and immigrant visa application fees. DOS’s proposed fee rule is scheduled for July 2019.

While the amount of these fee increases is not known, employers and foreign nationals should plan for the possibility of higher application costs after the rules are finalized.

Public charge Inadmissibiliy

As previously reported, DHS’s proposed rule on public charge admissibility was published on October 10, 2018 and the agency accepted public comment through December 10, 2018.  The agency’s new regulatory agenda has a September 2019 publication date for the final rule.  The rule would give DHS wider latitude to deny immigration benefits to persons it deems likely to become dependent on government aid.

Known Employer program

A proposal to allow eligible employers to request preadjudication of employment-based petitions and to reduce supporting documentary requirements is on DHS’s list of long-term regulatory plans, but does not have a target date. The proposed rule would seek to codify and make permanent USCIS’s existing Known Employer pilot program.

What’s ahead: the regulatory timeline and impact on current immigration programs

Agency regulatory agendas do not have an immediate effect on current programs, but are the clearest indication of the Trump Administration’s continued plans to restrict the H-1B, EB-5, and H-4 EAD programs. Organizations should take note of the forthcoming proposals when planning for future immigration needs, but should be aware that postponement of projected publication dates is common.

In most cases, the agency is expected to publish proposed regulations through regular administrative procedures. This would include a comment period to allow individuals and organizations to provide feedback, though a comment period is not guaranteed in all cases. Proposed rules would not take effect until the agency completed the regulatory approval process, which normally takes several months or more. If your organization wishes to comment on a proposed regulation, please contact your designated Fragomen professional or the firm’s Government Strategies and Compliance Group.

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