Federal Immigration Agencies Release Fall 2020 Regulatory Agendas

The Departments of Homeland Security, Labor, and State have declared their Fall 2020 Regulatory Agendas. This shows every agency’s rulemaking needs for the final six weeks of the Trump Administration. The released plans recommend that federal agencies plan to attempt to finish and implement various President Trump’s longstanding immigration needs before the Biden Administration is introduced on January 20, 2021. However, it isn’t certain whether they will have the option to do as such.

The following summarizes key employment-based items on the agencies’ immigration plans. The details of the proposed and last guidelines are private until released for publication. Organizations regularly bypass regulation publication target dates and the Trump government has under two months to finalize the rules scheduled for publication.

Tightening of the H-1B program and an increase in prevailing wages

The Trump Government is proceeding to pursue three existing rules that would fundamentally affect the H-1B program. The Department of Homeland Security (DHS) plans to finalize a rule that would replace its random, computerized H-1B lottery. With a system that allocates H-1B visa numbers as indicated by the Department of Labor’s four-level pay system. This rule, which was proposed in November and went through the standard notification and comment process, is presently scheduled for publication in January 2021.

Despite lawful challenges, DHS will also continue to move forward with its rule revising the definition of an H-1B specialty occupation to increase focus on acquiring the best and brightest foreign nationals. On October 8, 2020, the H-1B guideline was published as an interim final rule. Set to produce results before any consideration of public comments on December 7. A federal district court put aside the rule as unlawful before it took effect. On the basis that the agency didn’t have great cause to bypass notice and comment. DHS is probably going to look to cure this defect by considering the public comments got after October 8 and then giving the rule as final in the coming weeks. If finalized, administrative rules may require a delayed effective date.

The Department of Labor’s (DOL) overall pay interim final rule also appears on the regulatory agenda. Despite being set aside by a federal district court. This rule took effect quickly upon publication in the Federal Register on October 8. Significantly increasing prevailing wages in the H-1B, H-1B1, E-3, and PERM labor certification programs without public opportunity for comment.

Termination of H-4 employment authorization

A long-deferred plan to cancel a program that allows certain H-4 spouses to apply for employment is now scheduled to be published as a proposed regulation in December 2020, delayed most recently from September. The details of the proposed rule – including whether currently valid H-4 EADs would remain valid until their expiration – are not yet known. The proposal would not take effect unless finalized, which is not expected in the Biden Government.

Fall 2020 Regulatory Agendas | Restrictions on foreign student periods of stay

The last rule by Immigration and Customs Enforcement (ICE) to alter the period of authorized stay for certain F-1 and other nonimmigrants from term of status (D/S) to a predetermined end date. Is booked for distribution in December 2020, postponed from July. It is hazy, however, regardless of whether the targeted publication date is attainable given that the proposal got a lot of public criticism. And that the organization should give due consideration and respond to that feedback before issuing a final rule.

Presently, foreign nationals with a D/S time of approved stay are allowed to stay in the United States. Until the end of their approved action (plus any applicable grace period), whichever date that may be.

Limits and new requirements for business visitors

B visitor criteria and period of stay: The State Department is proceeding with its plans to change rules. Affecting the business visitor category with two separate guidelines. In December 2020, the agency plans to give a proposal that would change general B-1/B-2 policy, potentially by restricting permissible activities.

Another State Department rule that would eliminate the utilization of B-1 in lieu of the H-1B and H-3 (BILOH) classifications is further along in the regulatory process. The BILOH proposed rule was published and released for public comment in October 2020. However, the last version is not projected for publication until June 2021. It is unclear whether the Biden government would support the finalization of this rule.

Alongside the State Department proposals, DHS will propose a more thorough implementation of the B-1/B-2 business or tourist visitor visa classification. A proposed guideline was scheduled for June 2020 however is now projected for December 2020. It is expected to adjust the period of B guest admissions.

ESTA for Visa Waiver land travel: DHS expects to execute ESTA for utilization of the Visa Waiver Program. Overland borders through an interim final rule planned for December 2020. As an interim final rule, the change would take effect immediately or near immediately upon publication, before consideration of public comments. ESTA is currently only implemented for travel and entry to the United States by air or at seaports.

Biometrics requirements

Proposals relating to the collection of biometrics also remain on the DHS plan. A USCIS proposal that seeks to broadly expand the collection and use of biometrics in the administration of immigration laws was published at the beginning of September. The rule would expose foreign nationals to periodic biometrics collection and continuous vetting after they enter the United State. Eliminate age limits on the collection of biometrics, and subject immigration sponsors and their authorized signatories. Including U.S. residents – to biometrics collection. The projected publication date for the final rule is December 2020.

A Customs and Border Protection (CBP) proposed rule extending the utilization of biometrics in the U.S. entry and exit process is nearing the end of a public comment period on December 21. CBP doesn’t provide an estimated date for publication of a final rule.

Green card processing | Fall 2020 Regulatory Agendas

DHS is also planning to revise its guidelines governing the affidavit of support requirements applicable to mostly family-based green card applications. The DHS proposal was published in early October and a final rule is projected for publication in December 2020. The rule as proposed would require U.S. residents, nationals, and lawful permanent residents. Who sponsors an immigrant to provide heightened financial information, including credit reports and credit scores. And bank account information among other new requirements.

[Trump’s administration makes a final attempt to push through immigration changes]

What’s more, a DHS proposal to change the way adjustment of status applications are processed has moved from the long-term plan back on to the main plan. Yet isn’t planned for release until September 2021. The proposal tries to discontinue the concurrent filing of adjustment of status applications with Form I-140 employment-based immigrant visa petitions and other preference petitions. If finalized and executed, this could postpone the filing of applications for adjustment-based employment authorization and advance parole documents.

Deferral of anticipated L-1, EB-5, and F-1/M-1 practical training rules

DHS has moved a few things from its Spring 2020 to the main Fall 2020 Regulatory Agendas “long-term action” list. This shows that these proposed rules have been temporarily de-prioritized by the agency. It is unclear whether the Biden Administration will support these long term plans.

L-1 program changes: This proposal would reclassify L-1B specialized knowledge, as well as L-1 employment and employer-employee relationships. It would also likely further restrict the offsite placement of L-1 employees.

EB-5 program changes: Two DHS proposals would change the way EB-5 Regional Centers are designated and increase monitoring and oversight of the EB-5 program monitoring and oversight of the EB-5 program.

Practical training reform: This ICE proposal would change practical training rules for F and M foreign students. And potentially seek limitations on year optional practical training (OPT), STEM OPT extensions, and curricular practical training (CBP). This proposal was originally slated for publication in December 2020.