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Fall 2020 Midnight Regulatory Agenda – H1B, H4 EAD, F1, GC, B1

Unified Agenda or Regulatory Agenda is the list of items that US Federal Govt. publishes twice a year to outline their plans in the next months. These are nothing but prioritized list of the current administration planned actions. Fall 2020 is the last regulatory agenda for the outgoing Trump Administration as Biden will be the new President from Jan 20, 2021.  In this article we will review the entire list of the regulatory items.

 Background – Midnight Regulations – What are these?

The current Fall 2020 regulatory agenda is called as “midnight” or items in it are called as “midnight regulations” because it is done during the lame duck period. Basically, lame duck period is the time period from election results date until the date new president will be sworn in.  They are called so, because the outgoing administration would not have to face any consequences of the regulatory actions they take now as they are not accountable and leaving office.

You may check the Spring 2020 Regulatory Agenda items for H1B, H4 EAD, F1 to get an idea of what was in the previous agenda.  

Summary of the Fall 2020 Regulatory Agenda for H1B, H4, F1, L1, Other Visas :

To make it easier, we have grouped the unified agenda list of items by visa type for easy review and also we highlight the items that are new, old and the ones that carried over from previous regulatory agenda.  Below is summary snapshot, we will review the key ones in detail in this article. Some that are not key are not covered.

Fall 2020 Agenda Items – Continued from Spring 2020 Regulatory Agenda

  • Strengthening of H1B Nonimmigrant Visa Program
  • Removal of H4 EAD
  • Establish Fixed Time for Students and Visitors, instead of duration of status.
  • Collection and use of Biometrics by USCIS
  • Revise Admission, Extension Periods for Temporary Visitors for Business or Pleasure
  • Adjusting Fee for Student and Exchange Visitor Program
  • Revision of Provisional Unlawful Presence Waiver of Inadmissibility 

New Regulatory Agenda Items in Fall 2020 Regulatory Agenda

  • Updating Adjustment of Status Procedures for efficient processing and Immigrant Visa Usage
  • Modification of Registration Requirement for Petitioners Seeking To File Cap-Subject H-1B Petitions

Removed items from Spring 2020 Agenda

  • Practical Training (OPT, STEM OPT) Reforms.
  • Enhancing the Integrity of the Unlawful Presence Inadmissibility Provisions
  • USCIS Fee Changes

H1B Visa related items in Fall 2020 Regulatory Agenda

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. They also want to revise the definition of employer-employee relationship and employment for H1B visa to  protect US workers and wages. Also, additional requirements for paying well for H1B holders.

Expected Publication Date : Interim Final Rule Stage  

Official Rule Link : Reginfo.gov – H1B Definition Change

Current Status & Impact :   This regulatory item was already published as interim final rule and published in Federal Register as well.  You can read the complete details at H1B Definition Change, 1 year Approvals, Site Visits. There was a lawsuit on this and the court in California cancelled this interim final rule saying that DHS did not follow proper notice and comment period steps.  DHS confirmed the same that they are cancelling the rule as well based on Court order. You can watch the YouTube Video on USCIS cancels H1B Rules on 1 Year approvals.  Now, DHS has to publish this for comments from public and then seek feedback. There is not enough time for this for Trump Administration, so they may or may not pursue this.

Official Title of Rule: “Modification of Registration Requirement for Petitioners Seeking To File Cap-Subject H-1B Petitions

Summary :DHS would like to revise the H1B Visa Lottery Selection criteria from random selection to be based on the H1B Wage Levels. The goal is to select H1B applications who are paid highest salary first and then applicants with lower salary. USCIS believes wage is an indication of skill required for position.

Expected Final Rule Date :   Jan 2021

Official Rule Link : Reginfo.gov – H1B Lottery Selection Process

Current Status & Impact :   USCIS already published this regulation in Federal Register seeking comments from public. You can read details on the rule at : H1B Lottery to be based on Wage Levels Rule Summary. The comments period is closed now.  There are many comments submitted by users. DHS has to address all the comments and then only make this rule final. If not, it will be subject to lawsuit. One of the biggest concerns is health care professionals paid less wages in rural and smaller towns. In such cases, many of these applicants will not be selected. Also, as per statute, there is no rule of wage to be used for selection. This is planned for H1B Visa 2022 Season, if all goes well. Unless DHS addresses all concerns, it will be subject to lawsuits.

H4 Visa related items in Fall 2020 Regulatory Agenda

Official Title of Rule: “Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization”

Summary :   DHS originally published this rule in 2015 that gave H4 holders EAD for certain eligible H1B spouses to work in US. DHS is publishing this notice or item to amend/ change that published final rule and remove that EAD eligibility for certain H4 spouses.

Expected Publication Date :  Dec 2020

Official Rule Link : Reginfo.gov – H4 EAD Removal Rule

Current Status & Impact :   This item has been on the agenda since Spring 2018 Agenda, it was also on Fall 2018, Spring 2019, Fall 2019, and Spring Agenda. This rule has been stuck with OMB for quite some time now. There were many OMB meetings and the last one was in Nov 2019.   

This rule is also tied to the recent H4 EAD Lawsuit Judgment, where the judgment was favourable for Save Jobs USA and sent back to District Court. There are briefings filed in District court by Save Jobs and DHS, including intervenors like Immigration Voice.  Save Jobs has asked for Injunction stating that DHS is delaying the process.   DHS continues to say that their plan to remove H4 EAD does not change and this regulatory item signifies the same. The NPRM date has now moved to December 2020.  You can check H4 EAD Removal History – News for full info.

There is little time left for the Trump Administration to go through the entire regulatory process to remove H4 EAD. They may or may not pursue this due to short on time. Once Biden administration comes into action, this may not be pursued as H4 EAD rule was created under Obama – Biden administration. But, the biggest catch is decision from Court in the lawsuit. The future of this will depend on the court judgment. We need to wait and see.

We did some predictions in the past in June 2020, simulating the timelines by taking into consideration time it takes for regulation. We have not updated predictions as it is stuck for a while. Even though dates have not changed, to get an idea, you may check out the H4 EAD Rule Removal Predictions

Green Card Related Agenda Items

Official Title of Rule: Updating Adjustment of Status Procedures for More Efficient Processing and Immigrant Visa Usage ”

Summary : This rule 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.

Expected Publication Date : Sep 2021 (NPRM)

Official Rule Link : Green Card Processing Regulation

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. It was removed in Spring 2020 agenda, now back in Fall 2020 agenda. 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.

F1 Visa, ICE related items in Fall 2020 Regulatory Agenda

Official Title of Rule: “Establishing a Fixed Time Period of Admission and an Extension of Stay Procedure for Nonimmigrant Academic Students, Exchange Visitors, and Representatives of Foreign Information Media ”

Summary :  USCIS / ICE propose to change the period of authorized stay for F1 and other non-immigration from D/S ( Duration of Status) and replace with maximum period of authorized stay, and options to extend the same.

Expected Final Rule  : December  2020

Official Rule Link : Reginfo.gov – F1 Max Stay

Current Status & Impact :   As of now, if you enter US on F1 visa, CBP officer puts in D/S stamp (Duration of Status)  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 rule was published for public comments and comments period is done. You can check Federal Register for Rule text.  This is a significant rule and can have huge impact. Many are opposing this. Unless, the final rule addresses the concerns raised, this may end up in lawsuit. This could be a priority for Trump Administration as it is at the last stage to be published.

B1/B2 Visa, ICE related items in Fall 2020 Regulatory Agenda

Official Title of Rule: Period of Admission and Extension Stay for 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 duration for B1 or B2 classification and extension periods to align with Immigration and Nationality Act (INA).

Expected Publication Date : December 2020 (NPRM)

Official Rule Link : RegInfo B1 – B2 Visitors Visa

Current Status & Impact :  The title of this changed in Fall 2020 agenda, but this was in Fall 2018 agenda, then removed in Spring 2019 and now continues to be in Fall 2019, Spring 2020 and Fall 2020 agendas. There are very little details. In the past, the rule text said to clarify the B1, B2 visa purpose. Now, they have narrowed it down to duration of the stay for them and extension for those visas. As of now, nothing changes. You can apply for B2 US Visitor Visa for your Parents or B1 for work in normal way. The date of December 2020 for public comments (NPRM) sounds ambitious. Trump Adminisration may or may not be able to make it all the way through in short time left for them.  

 General Visa, USCIS related items in Fall 2020 Regulatory Agenda

Official Title of Rule: “Collection and Use of Biometrics by U.S. Citizenship and Immigration Services”

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.

Expected Final Rule Date : Dec 2020

Official Rule Link : Reginfo.gov – Biometrics Changes

Current Status & Impact :  In 2019, 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. As part of Trump national security agenda, they published this rule in Federal Register with crazy requirements on what they would take from users. It was published in September 2020 for public comments.  DHS needs to provide proper justification on how they would use these details. It is not clear on how they will respond. If not properly addressed, it will end up in lawsuit. This could be a priority for Trump administration as they are in the last mile to publish it. We need to wait and see.

What do you think of these midnight regulatory agenda items ? Share your thoughts in comments.

   


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6 Comments

  1. Hi Kumar

    I have a question. My H1b Tranfer was approved with a start date of Dec 1st 2020. It was approved on the 17th dec. I gave my 2 weeks notice period after approval to my current employer on the 21st dec and my employment was terminated in the middle of my notice period. Is my current employer still liable to pay me full for my last 2 weeks as per LCA and H1B norms? I cannot join my future employer until my notice period is over. Legally and technically I can, but due to logistical reasons I cant start immediately even though my transfer is approved. Should I file complaint with DOL and/or USCIS and make sure I get paid for that notice period from my current (old now) employer?

    Thanks

    Reply
    • PS,
      You are supposed to be paid until the last date of your employment. It is usually mutually agreed by you and your employer. If your employer said that they would hold you for two weeks on H1B, then they are supposed to pay you. But, if they say, they do not need services, then they can terminiate and not pay. You may report to DOL, if you see there was any violation of terms.

      Reply
      • Hi Kumar

        Thanks for your response. What if they didnt follow the rules of bonafide termination in the context of H-1B. Specifically not offering to pay for a ticket. I think DOL and USCIS lists 3 requirements to be followed in a termination of H-1B employee and offering in writing to pay for transportation is one of them. What do you think?

        Thanks

        Reply
        • PS,
          That is relevant only if they are doing a layoff to you. Here, it is your will to leave the company right ? So, slightly grey area.

          Reply
          • Hi Kumar

            I was leaving but not until the 1st Jan. He let me go on 24th Dec. I wanted to work a week more till 31st dec and I told him so explicitly. He terminated my employment on 24th Dec without any cause. I figured thats not a bonafide termination since he did not offer me transportation costs. You agree?

          • PS,
            It is not your choice, it is the employer’s decision because it is your intent to leave. It is their discretion as your intention has changed. Again, this is very much a grey area and subjective. There is no rule or anything that tells all these situations on how one should handle. They are only obliged to give you transporation costs, when they do layoffs. In your case , you do not qualify as it is your will.

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