The Fall Regulatory Agenda of the Department of Homeland Security under the Trump Administration was recently published and re-confirms the earlier announced plans for reform with updated timelines, but also adds some new plans for regulations.
Be aware that no changes are happening TODAY. These are just expected proposals for change that could happen in the future.
Here are the major proposals in the pipeline for employment-based immigration:
- H-4 EAD removal timeline changed to March 2020 for a possible proposal to be announced.
- NEW: In order to improve the integrity of the L-1 program, the Department of Homeland Security will propose to revise the definition of specialized knowledge, to clarify the definition of employment and employer-employee relationship, and ensure employers pay appropriate wages to L-1 visa holders. Look for proposal in Fall 2020.
- DHS proposes to eliminate the concurrent filing of I-140 petitions and Form I-485 for all applicants seeking an immigrant visa in a preference category, and proposes to make further changes to the appropriate dates when applicants can file Form I- 485 and for ancillary benefits. Look for proposal in Spring 2020.
- The Department of Homeland Security (DHS) will propose to revise the definition of specialty occupation to increase focus on obtaining the best and the brightest foreign nationals via the H-1B program, and revise the definition of employment and employer-employee relationship to better protect U.S. workers and wages. In addition, DHS will propose additional requirements designed to ensure employers pay appropriate wages to H-1B visa holders. Possible proposal next month.
- The Department of Homeland Security (DHS) will propose to update its regulations to allow for the expansion of the types of biometrics required to establish and verify an identity. DHS will also propose to align U.S. Citizenship and Immigration Services (USCIS) biometric collection with other immigration operations. Look for proposal in early 2020.
- Increased filing fees (previously announced, comment period is underway and ends on December 16, 2019)
- The Department of Homeland Security (DHS) will propose to: (1) Set requirements for mandatory-online submission for immigration benefit requests and explain the requirements associated with electronic processing; and (2) make changes to existing regulations to allow end-to-end digital processing. Look for proposal next month.
- NEW: DHS has not implemented regulations describing how unlawful presence accrues for the purposes of the three-year, ten-year, and permanent bars. DHS intends to propose regulations to this effect, which may include or expand upon certain current agency policies, including whether certain failures to abide by the conditions of admission as a nonimmigrant can result in accrual of unlawful presence. Further, DHS intends to address how aliens subject to inadmissibility under 212(a)(9)(B)(i) and (C)(i)(I) may be admitted to the United States after remaining outside the United States for the required period of time. Look for proposal in Fall 2020.
- ICE will amend existing regulations and revise the practical training options available to nonimmigrant students on F and M visas. Look for proposal in Fall 2020.
- U.S. Immigration and Customs Enforcement (ICE) will propose to modify the period of authorized stay for certain categories of nonimmigrants traveling to the United States by eliminating the availability of “duration of status” and by providing a maximum period of authorized stay with options for extensions for each applicable visa category. Look for proposal in Spring 2020.
The regulatory agenda can be found at https://www.reginfo.gov/public/do/eAgendaMain
The regulatory process is a long and winding path. Many of the timelines for proposals listed above have already been extended multiple times and may be extended again when the spring agenda comes out. Before a regulation is proposed, it must be reviewed by the Office of Management and Budget, which can take a few weeks to months. Assuming it receives the green light and the proposed regulation is eventually published, there will usually be a 30 to 60 day commenting period. After that, the agency must review the comments and decide on a final regulation. Before the final regulation can be published, it must be reviewed again by the Office of Management and Budget, which can again take a few weeks to months. Assuming it receives the green light, a final regulation would then be published in the federal register with a specific date in the future that it would take effect. All of this to say that nothing will change overnight!