Every year US Federal Govt publishes their key priorities in the form of Unified Agenda with the key regulations they are working on and what they plan to do in the upcoming months. The regulatory agenda involves various agencies priorities, but for our audience, we will focus only on the regulatory agenda items related to H1B, H4, F1, L1 Visas. The previous regulatory agenda was published in Spring. For more context of the priorities from past, you can read Spring 2019 Regulatory Agenda – H1B, H4, F1, L1 Visas info
Summary of the Fall 2019 Unified / Regulatory Agenda for H1B, H4, F1, L1, Other Visas :
Below we have grouped the unified agenda items by visa type for easy review. We have few items that were added, some were just carried over from the previous publication of Spring 2019, whereas some are removed. Let’s look at high level items that were changed and then look at details of each of them.
For H1B, H4, F1, News Updates:
New Agenda Items in Fall 2019 Regulatory Agenda
Strengthening the L-1 Nonimmigrant Classification
Practical Training Reform
Enhancing the Integrity of the Unlawful Presence Inadmissibility Provisions
Nonimmigrant Classes: Temporary Visitors to the United States for Business or Pleasure
Completed Items from Previous Agenda :
Fee for Registration Requirement for Petitioners Seeking To File H-1B Petitions on Behalf of Cap Subject Aliens
Removed Items from previous Agenda
Eligibility Checks of Nominated and Current Designated School Officials of Schools That Enroll F and M Nonimmigrant Students and of Exchange Visitor Program-Designated Sponsors of J Nonimmigrants
H1B Visa Related Rules
Official Title of Rule: “Strengthening the H-1B Non-immigrant Visa Classification Program”
Summary : DHS wants to change the definition of the H1B visa program to get the best and brightest talent from foreign countries. As they have noticed abuse of the H1B program around employer-employee relationship, classification of a H1B job, they want to make some changes so that US workers are protected and additional requirements for paying well for H1B holders. DHS wants to ensure all the policies are in-line with their recent Trump executive order of “Buy American and Hire American”. They want to make sure US workers are protected and H1B holders will only supplement US work force. There may be some changes to fees and extra paper work as per USCIS
Current Status & Impact : They are still considering the cost and benefit impact of this change. This item has been on the agenda since Spring 2018 agenda, it continued to be in Fall 2018 and Spring 2019 Agenda…They have been just moving the dates. The previous NPRM date was August 2019. Now it is moved to Dec 2019. Trump administration has done quite a bit on H1B visa program enforcement with changes related to third party worksite workers, detailed job info, employer-employee relationship, etc. Depending on what they plan to propose in this, it could have a significant impact on the overall H1B Program. If they do something this year, we may see such changes for H1B 2021 Season. Looking at the history of this, it is unlikely that they could do something in a month…we need to wait and see.
H4 Visa Related Rules
Official Title of Rule: “Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization”
Summary : DHS published a rule in 2015, which is H4 EAD rule for certain eligible H1B spouses to work on EAD. DHS is publishing this notice or item to amend/ change that published final rule and remove that EAD eligibility for certain H4 spouses.
Current Status & Impact : This item has been on the agenda since Spring 2018 Agenda, it was also on Fall 2018 and Spring 2019 Agenda. The progress so far in the rulemaking to revoke H4 EAD in the last year and half is that they had OMB review meetings happening and the recent one was on Nov 13th , 2019 with Infosys. They also updated cost and benefits, where they tell that H4 EAD will benefit some of H4 holders to work and will save costs for employers from their EAD employees terminations…but, it does not talk about the bigger picture of how H4 EAD are contributing to economy and helping employers…
This rule is also tied to the recent H4 EAD Lawsuit Judgment, where the judgment was favourable for Save Jobs USA to go back to District Court and start to review the case again…DHS said as part of the lawsuit that they plan to publish the rule to revoke H4 EAD in Spring 2020. Overall, this is one of the most discussed regulation and lawsuit. It will have a significant impact on H4 Spouses, if this goes through…There are many waiting for the next steps… As of now, nothing changes, you can continue to file for EAD, if you are eligible…Check more details at : H4 EAD Removal History – News with full info. Regarding time of March 2020, DHS said that it is aspirational date, we need to wait and see… You can also check out the H4 EAD Rule Removal Predictions, where we simulate to predict dates, based on rulemaking process timelines and pace of process.
Green Card Related Rules
Official Title of Rule: “Updating Adjustment of Status Procedures for More Efficient Processing and Immigrant Visa Usage ”
Summary : This is new rule and is intended to reduce the processing times of Green Card. The rule targets to increase efficiency in processing of Application for Permanent Residence or Adjustment of Status using Form I-485 and reduce fraud filings. DHS plans to remove the concurrent filing of visa petitions and form I-485 and plans to propose changes to appropriate dates when they can file I-485 and for other ancillary benefits.
Current Status & Impact : This has been on the unified agenda since Fall 2018. Nothing has moved, the only date for NPRM changed from Sep 2019 to April 2020. Nothing changes for now, this is targeted to reduce the long wait times and fraud in filing green petitions. There are no specific details on how this will all work, they say that they would like to use the data efficiently and remove the concurrent filing. Not many details at this point.
L1 Visa related Rules
Official Title of Rule: “Strengthening the L-1 Nonimmigrant Classification”
Summary : The rule is set to revise the definition of specialized knowledge and to clarify definition of employment, employer-employee relationship and for employers to pay appropriate wages to L1 holders.
Current Status & Impact : This agenda item is new and appearing for the first time. L1 Programs are mainly used by MNCs and it is subject to some abuse by the employers. Especially, how the employer-employee relationship exists today and how the MNCs are getting their employees from overseas saying specialized knowledge. USCIS want to revise all of the definitions so that they avoid companies using the L1 route to displace US workers. It has next fall deadline, so nothing will move here for another year at least.
F1 Visa and ICE Related Rules
Official Title of Rule: “Establishing a Maximum Period of Authorized Stay for F-1 and Other Nonimmigrants ”
Summary : USCIS / ICE propose to change the period of authorized stay for F1 and other non-immigration from D/S ( Duration of Stay) and replace with maximum period of authorized stay, and options to extend the same.
Current Status & Impact : This has been on unified agenda since Fall 2018 agenda, nothing has changed. The expected date also did not change from Spring 2019 dates. Currently, if you enter US on F1 visa, CBP officer puts in D/S meaning Duration of Stay and does not have an end date. It means as long as you maintain your status, you can stay in US. (Read US Visa vs Status). DHS would like to change this and have a specified end date like for H1B or L1 visas. The reason for doing this is to reduce the overstay rates for non-immigrant students. This will have impact on the cost as it involves many parties and will take time. Not many details are in the rule at this point. Nothing changes for F1 students or other visa holders now. But, it could have an impact on how long students stay within US after graduation or OPT.
Official Title of Rule : “Practical Training Reform“
Summary : This rule is proposed to address the abuse of the CPT and OPT Work Options by F visa and M visa students that is impacting the American workers. ICE has previously planned to do some big changes to reduce the fraud in this program, but did not move it further. The proposed changes are to be in-line to protect US workers jobs and not displace them. ICE is expected to propose rules like increase of the oversight by the schools and ensure there is compliance of the program. They says that there will be extra costs involved for the schools, ICE and students, but the outcome is to avoid fraud and protect the integrity of the program.
Current Status & Impact : This originally appeared in Fall 2017 agenda, then was in couple of agendas, but was not part of Spring 2019 agenda. The fact that it has come back again in agenda means that DHS wants to do something here in OPT and CPT areas. In general, there is no immediate impact. It is too early to speculate on what impact would be here. There are definitely schools that are primarily degree mills, which are abusing these programs. Also, with the 24 Month OPT rule, some employers are using this as a bridge for employment and impact US workers, that’s the concern. We may expect some extra oversight rules that may kick-in that could make it harder for the abuse of the program and more overhead for the schools. Still long way to go, but it becomes effective, will have impact for all the schools that do Day 1 CPT programs and how OPT program would work.
B1/ B2 Visa Rules
Official Title of Rule: “Nonimmigrant Classes: Temporary Visitors to the United States for Business or Pleasure ”
Summary : DHS would like to amend the regulations for temporary visitors for B1 and B2. The rule will clarify the criteria for B1 or B2 classification of applicants for admission to US. It is mean to make sure there is fair adjudication of petitions and enforcement, including to make the process transparent.
Current Status & Impact : This was in Fall 2018 agenda, then removed in Spring 2019 and now it is back again in Fall 2019 agenda. There are very little details. I believe, the rule is probably to make the requirements clear and transparent for the visa adjudication. We have little or no details, need to wait and see. As of now, nothing changes. You can apply for B2 US Visitor Visa for your Parents or B1 for work in normal way. This has a long way to go as it is set for next September.
USCIS Fee, Process Rules, General
Official Title of Rule: “Requirements for Filing Motions and Administrative Appeals ”
Summary : To revise the requirements and procedures for filing the motions and appeals before DHS, USCIS, and Administrative Appeals Office (AAO). This will help USCIS in terms on how they process them efficiently and reduce delays.
Current Status & Impact : This was originally proposed in 2007 and then withdrawn. This appeared in Spring 2019 Agenda and now continues to be in the list. The idea of this rule is to ensure they establish some new guidelines to file appeals, as the current process is not fully defined and the outcome for appeals is taking forever…USCIS want to change this. This will have an impact for all types of petitions like H1B, H4, L1, etc. which gets a denial or NOID as USCIS is planning to change, when you can appeal and what those requirements would be. This is targeted for Dec 2019, which seems too tight…I highly doubt, if something will happen soon on this…
Official Title of Rule: “Enhancing the Integrity of the Unlawful Presence Inadmissibility Provisions”
Summary : This rule is set to revise how DHS will classify and count unlawful presence for three and 10 year bar to enter US. The last update to this was done in 1997 and no update was done since then, so USCIS want to define some policies and conditions for non-immigrants that they should maintain when they have a status in US and how they will be counted towards unlawful presence.
Current Status & Impact : This agenda item is the idea behind the rule is to come up with some new policies to enforce non-immigrants follow rules and do not violate status. They want to make sure non-immigrants abide by their status related activities and USCIS want to outline how the whole unlawful presence count will work. It can have significant impact, depending on what comes out of the regulation as it will define how non-immigrants are supposed to maintain their status and what will be counted towards unlawful presence. This is expected for next Sep, so long way to go…
Official Title of Rule: “U.S. Citizenship and Immigration Services Biometrics Collection for Consistent, Efficient, and Effective Operations”
Summary : DHS is planning to update its regulation on the Biometrics and how they will collect the same and use it as part of the overall immigration process. They plan to change the age restrictions to prevent human trafficking of children. Also, establish consistent enrolment and verification processes.
Current Status & Impact : This agenda item also appeared in Spring 2019 agenda. Not much progress was made…Earlier this year, USCIS has introduced Biometrics for Form I-539 like H4…Also, they already collect biometrics for other forms as well, but this is not consistent and not clear on what they do with it, other than telling used for security clearance and more vetting. They updated in the rule is for evolution of system towards continuous vetting and person-centric record keeping… This is part of Trump national security agenda as well. This could have an impact on the overall processing times of various forms that USCIS does today….So, we need to wait and see for more details on the same. The date seems aggressive to have NPRM by January 2020, we need to wait and see. It moved from Sep 2019 to Jan 2020. Looking at the progress, we can expect this to move further.
Official Title of Rule: “U.S. Citizenship and Immigration Services Fee Schedule”
Summary : Basically, USCIS go through fees revisions for making sure they cover their costs. They have recently published a rule in federal register that has significant changes to the fee for many form types. Check Fee Increase Rule on Federal Register 2019
Current Status & Impact : The rule for fee increase is already published and it has significant fee hike. It is currently in comment period for public to give their feedback until Dec 16th, 2019. For H1B, the application fee can go up by $100 or 22% increase…for H4 forms, it could go up by $30 or 8% of current fee. Similarly, there are many similar fee increase for other visa types. There is no exact date given on when this will be effective. This is a significant fee change for other form types and details could change based on comments.
What do you think of the new items added to the agenda and existing items in the agenda ? Share your thoughts in comments.