Federal Immigration Agencies Release Fall 2018 Regulatory Agendas

---

At a glance

• According to its regulatory plan for fall 2018, DHS is moving forward with plans to terminate the H-4 employment authorization program, with a proposed rule expected in November 2018.
• DHS also plans to publish a proposal this month establishing an H-1B cap pre-registration system, which would permit the filing of only pre-selected H-1B petitions, and to be implemented potentially as early as the spring 2019 cap season.

---

The situation

The Department of Homeland Security (DHS) and Department of Labor (DOL) have released their fall 2018 regulatory agendas, which propose new regulations, push back projected publication dates for other proposed regulations, and reprioritize previously stated goals. If finalized, these rules would significantly impact the H-1B and EB-5 programs, and H-4 employment authorization.

The following summarizes key items on the agencies’ fall 2018 agenda:

H-1B and H-4 Programs

• H-1B cap lottery pre-registration and selection. A proposal that would require H-1B petitioners to pre-register for the H-1B cap lottery and to submit cap petitions only after they have won cap numbers, originally slated for publication in February 2018, has an updated anticipated publication date of October 2018.  According to USCIS Director L. Francis Cissna, the agency plans to have the pre-registration process in place for the FY 2020 H-1B cap filing season, which is set to open in April 2019. Though the details of USCIS’s plan will remain confidential until released for publication, it is anticipated that employers would complete and submit a brief H-1B cap pre-registration form for each foreign beneficiary and would only submit a full petition and supporting evidence for registrations selected in the H-1B cap lotteries. The period for petition submission could be brief.

• 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,” last slated for publication in January 2019, has an updated anticipated publication date of August 2019. The rule is also expected to revise the definitions of “employment” and “employer-employee relationship,” likely in a manner more restrictive for potential H-1B employers, and to address wages.

• Termination of the H-4 employment authorization program. A long-awaited proposal to rescind regulations that permit certain H-4 spouses to apply for employment authorization is set to be published in November 2018.  The program termination is an agency priority and a final regulation could be published by mid-2019.  The details of the proposed rule – including whether under the rescission plan, currently valid H-4 EADs will remain valid for their entire duration -- are not yet known.

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 November 2018.  It had been slated for publication in August 2018.

• EB-5 Immigrant Investor Regional Center Program. A proposal to make regulatory changes to the EB-5 Regional Center Program has retained its anticipated publication date of March 2019.

• EB-5 Immigrant Investor Program Realignment. A new 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.  The agency will seek public feedback in advance of a broader proposal on intended EB-5 changes and is slated for publication in September 2019.

Green Card Processing: A new, and thus far relatively vague, proposal to “improve the efficiency” of adjustment of status application processing, including reduction of processing times and promotion of “efficient usage of available immigrant visas” is slated for publication in September 2019.  The rule could impact the concurrent filing of Form I-140 immigrant visa petitions with adjustment of status applications, which would have a significant impact on employment-based green card applicants.

Student and Related Visa Programs: A new proposal by ICE to modify the period of authorized stay for certain F-1 and other nonimmigrants from duration of status (D/S) to a specified end date, is slated for publication in September 2019.Also,a proposed rule to increase Student and Exchange Visitor Program (SEVP) fees, last slated for publication in September 2018, now has an updated anticipated publication date of March 2019.

ICE’s proposal to revise practical training rules for F and M foreign students has been removed from the fall 2018 agenda, but it could return. The proposal had been anticipated to propose restrictions on 12-month OPT, STEM OPT extensions, and Curricular Practical Training.

USCIS Fee increases: As DHS previously stated, it intends to propose increases to USCIS filing fees. The revised anticipated publication date is February 2019.​

Criteria for B-1 or B-2 classification: DHS intends to propose a rule to clarify the criteria for B-1 or B-2 classification. This proposed regulation, which had initially been slated for publication during the Obama administration, could limit permissible business activities. The anticipated publication date has been moved from November 2018 to September 2019.

Collection of Biometric Entry-Exit Data from Foreign Nationals and U.S. Citizens:  A final CBP rule creating a comprehensive biometric exit-entry system for foreign nationals is scheduled to be published in December 2018; though biometric entry procedures have long been in place, biometric exit procedures have not been fully implemented.  In the fall agenda, CBP also announced its intention to propose a new rule that would expand this program to include U.S. citizens in entry-exit biometric collection (specifically, facial recognition). The new proposed rule affecting U.S. citizens is slated for publication in February 2019.

Public charge inadmissibility: As recently reported, DHS’s proposed rule on public charge admissibility was published on October 10, 2018 and the agency is accepting public comment through December 10, 2018.

DOL H-2B Proposal:  DOL, along with USCIS, proposes to jointly amend regulations regarding the H-2B nonimmigrant visa program. The proposed rule, which will eliminate print newspaper advertisements and modernize the requirements employers must meet for advertising job opportunities to U.S. workers, has a projected publication date of October 2018.

Looking ahead

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.

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.

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.