The Unified Agenda of Regulatory and Deregulatory Actions (Agenda) reports on the actions administrative agencies plan to issue in the near and long term, providing public notice and transparency of proposed actions within the Executive Branch.
USILAW has reviewed the Agenda and highlighted planned Actions by the Department of Homeland Security, Department of Labor and Department of State which will impact certain categories of immigrants and nonimmigrants.
Department of Homeland Security / US Citizenship and Immigration Services
Proposed amendments governing adjustment of status to lawful permanent residence include permitting concurrent filing of a visa petition and the application for adjustment of status for the employment-based 4th preference category; permitting the transfer of the underlying basis of a pending adjustment of status application; clarifying when a visa becomes available for purposes of the age calculation under the Child Status Protection Act; and authorizing compelling circumstances employment authorization for certain derivative beneficiaries waiting for immigrant visa availability. DHS also proposes to amend the regulations relating to travel authorization for temporary protected status recipients.
Proposed amendments governing certain nonimmigrant workers include updating the employment authorization rules regarding dependent spouses of certain nonimmigrants; increasing flexibilities for certain nonimmigrant workers, including those who resign or are terminated from employment, and religious workers who have reached their maximum period of stay or are waiting for immigrant visas to become available; and modernizing policies and procedures for Employment Authorization Documents.
DHS proposed revisions to the regulations relating to the definitions of “specialty occupation” and the “employer-employee relationship”; provide flexibility for start-up entrepreneurs; implement new requirements and guidelines for H-1B site visits; provide flexibility on the employment start date listed on the petition (in limited circumstances); address “cap-gap” issues; bolster the H-1B registration process to reduce the possibility of misuse and fraud in the H-1B registration system; modernize cap exemptions; clarify the requirement that an amended or new petition be filed where there are material changes; and codify USCIS’ deference policy and requirement of maintenance of status for all employment-based nonimmigrant classifications that use Form I-129, among other provisions.
DHS published a Final Rule implementing a beneficiary centric selection process for H-1B registrations, as well as additional integrity measures and flexibilities related to H-1B registration. DHS continues to consider the suggestions made in public comments and intends to finalize the remaining provisions in one or more actions.
DHS published new regulatory provisions guiding the use of parole on a case-by-case basis with respect to entrepreneurs of start-up entities who can demonstrate through evidence of substantial and demonstrated potential for rapid business growth and job creation that they would provide a significant public benefit to the United States. The 2017 regulation provided that the investment and revenue amount requirements would automatically adjust every three years. USCIS issued a rule regarding the increased amounts taking effect at the start of Fiscal Year 2022 and revised the regulations to accurately reflect the updated investment amounts.
Proposed changes to modernize and reform the H-2A and H-2B nonimmigrant worker programs would produce program efficiencies, address current aspects of the program that may unintentionally result in exploitation or other abuse of persons seeking to come to this country as H-2A and H-2B workers, build upon existing protections against prohibited payments or other assessment of fees and/or salary deductions by H-2A and H-2B employers in connection with recruitment and/or H-2 employment, and otherwise add protections for workers. DHS is reviewing the comments received during the comment period.
DHS published temporary Final Rule to increase the automatic extension period applicable to expiring Employment Authorization Documents (EADs) for certain Employment Authorization renewal applicants from up to 180 days to up to 540 days from the expiration date stated on their EADs. The expanded automatic extension time, totaling up to 540 days, will generally be available to those EAD renewal applicants normally eligible for the 180-day automatic extension and who have a pending EAD renewal application between October 27, 2023, and September 30, 2025, the end of a 540-day period that begins with the rule’s publication in the Federal Register. DHS is considering public comments received and evaluating the need for future action.
Department of Homeland Security / US Customs and Border Protection
DHS must develop and implement an integrated, automated entry and exit data system to match records, including biographic data and biometrics of noncitizens entering and departing the United States. Current regulations only authorize DHS to collect biometrics from certain noncitizens upon departure under pilot programs at land ports and at up to 15 airports and seaports. Amendments to the regulations will remove the references to pilot programs and the port limitation and will state that all noncitizens may be required to be photographed upon entry and/or departure.
The 9-11 Response and Biometric Entry-Exit Fees for H-1B and L-1 Visas are paid by certain employers of H-1B and L nonimmigrant workers. Proposed amendments will specify that these fees will apply to all H-1B and L-1 extension petitions in addition to all previously covered H-1B and L-1 petitions.
Proposed regulations promoting family unity principles would codify into regulation current judicial standards and agency policies governing DHS family separation and reunification decisions. The proposed rule would also establish specific tracking, recordkeeping, and information-sharing requirements related to certain families, when appropriate and legally permissible.
Department of Labor / Employment and Training Administration
The DOL and USCIS are jointly proposing to update the H-2B visa program regulations, the related prevailing wage regulations, regulations governing the certification of the employment of H-2B nonimmigrant workers in temporary or seasonal non-agricultural employment and the enforcement of the obligations applicable to employers of such nonimmigrant workers and U.S. workers in corresponding employment. Specifically, they intend to update the process by which employers seeking to employ H-2B workers would obtain temporary certification from DOL for use in petitioning DHS to employ a nonimmigrant worker in H-2B status. The updates would also establish standards and procedures for employers seeking to hire foreign temporary non-agricultural workers for certain itinerant job opportunities, including entertainers, tree planting, and utility vegetation management.
The DOL is considering updating Schedule A of the permanent labor certification process. The public may provide input on whether Schedule A serves as an effective tool for addressing current labor shortages, and how the Department may create a timely, coherent, and transparent methodology for identifying science, technology, engineering, and mathematics (STEM) and other occupations that are experiencing labor shortages to ensure the employment of foreign nationals does not displace U.S. workers or adversely affect their wages and working conditions. Information received from the public will help inform decisions regarding how to improve Schedule A and ensure that its purpose is met.
Department of State
The DOS intends to amend its regulations regarding the general requirement for immigrant visa applicants to personally appear before a consular officer.
Proposed amendments to regulations governing the public charge ground of visa ineligibility would align them with DHS regulations and to affirm that consular officers should use a “totality of circumstances” approach to public charge determinations.
Proposed amendments to the Diversity Immigrant Visa Program would require petitioners to provide valid, unexpired passport information on their electronic entry form. Proposed amendments will also include technical updates to the regulations regarding submission of electronic photographs with DV entries, general technical updates based on current requirements, changes to listed districts of Northern Ireland, and changes in terminology to make the regulation more accessible and inclusive.
USILAW will provide updates as they become available.
