Biden Administration released its Fall 2023 regulatory agenda last week, which outlines its key priorities for the upcoming year. This article will review the main regulatory items around Visa types such as H1B, H4, L1, F1, and Green Card as prioritized by the Biden Administration.
Background: Regulatory Agenda or Unified Agenda
The Regulatory Agenda or Unified Agenda is the list of items the US Federal Govt. publishes twice yearly to outline their plans for the following months. These are the prioritized list of the current administration’s planned actions. These are posted on the website Reginfo.gov. It has full list of items by the Federal Agency.
Summary of Fall 2023 Regulatory Agenda for H1B, H4, F1, L1, Other Visas :
Below is the summary of the key regulatory agenda items that are top of the list for the Biden Administration for the next 6 to 10 months in the context of H1B, H4, F1, and other visa holders, including Green Cards.
- Modernizing H1B Program, increase oversight, and provide flexibility for F1 program
- Pilot program for Domestic Visa renewal for H1B Visa holders.
- Changes to H1B, L1 fee for all extensions based on Public Law 114-113
- Changes to Employment-based Green Card EB1, EB2 and EB3 provisions to attract talent.
- Changes to USCIS fees as per Schedule.
- Add more occupations to Schedule A that are in demand.
Let’s look at each of the above items in detail and their status.
H1B Visa related items in Fall 2023 Regulatory Agenda
Official Title of Rule: “Modernizing H-1B Requirements and Oversight, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers” | |
Summary: DHS wants to change some of the aspects of the H1B Visa program related to the employer-employee relationship, requirements for site visits, more oversight to avoid fraud, address cap-gap provisions for F1 students, address requirements for amendments, notification related to worksite changes, etc. | |
Expected Publication Date: November 2023 (NPRM) | Official Rule Link: Reginfo.gov – H1B Modernize, F1 Flexibility |
Current Status & Impact: This agenda item has been on the list of Biden’s administration since 2021. They did make some progress on this in the last couple of years and recently published a full rule that is currently getting public comments for revisions. You can read full analysis of the text at H1B Visa Program Modernization Regulation Summary. The comment period is valid until December 22nd, 2023. We can expect something in early 2024 after DHS reviews the comments. Some parts of the regulation may go into effect for the H1B Visa FY 2025 Season as per their guidance. | |
Official Title of Rule: “Pilot Program to Resume Renewal of H-1B Nonimmigrant Visas in the United States for Certain Qualified Noncitizens” | |
Summary: The US Department of State wants to bring back the visa stampings within the US for renewals. As part of the border initiative, they want to start with a pilot program to do H1B visa stamping for renewals within the US. | |
Expected Start of Pilot: February 2024 | Official Rule Link: Reginfo.gov – Pilot program for H1B Stamping in USA |
Current Status & Impact: US Department of State has been mentioning and planning this since February 2023. This was highlighted many times and discussed all over the place. The most recent update on this is that they plan to give 20,000 H1B visa stampings as part of this pilot and will not include dependents. The actual regulation text related to this is not out yet. It is with OMB for review and yet to be released to public. It should very likely start in February 2024. You can read full status and updates at H1B Visa Stamping within USA – Pilot Program News Updates. | |
Official Title of Rule: “9-11 Response & Biometric Entry-Exit Fees for H-1B and L-1 Visas” | |
Summary: As of now, some employers who fall into certain criteria pay about $4000 or $4500 USD fee as part of implementing the Public Law 114-113. DHS is planning to expand this fee to all H1B, and L1 visa extensions instead of only the initial H1B and L1 petitions | |
Expected Publication Date: April 2024 (NPRM) | Official Rule Link: Reginfo.gov – H1B and L1 Fee Changes |
Current Status & Impact: This rule is slated to be implemented in April 2024. This will likely be an easy change for them as it is just fees increase and it will increase the revenue for them. We need to wait and see if they will implement it as planned. We are yet to see the full regulatory text on the same. If this is implemented, it will increase the cost for employers filing extensions. | |
Green Card-related Items from Fall 2023 Agenda
Official Title of Rule: “Petition for Immigrant Worker Reforms” | |
Summary: This rule is intended to review and change the Employment Based Green Card provisions for EB1, EB2, and EB3 classifications. Mainly focused on bringing talent to the US, like changes to the extraordinary ability, outstanding professors, EB2 NIW classification, physicians, etc., and reforms to ensure the integrity of the I-140 program. They also want to codify some of the existing practices used today for Employment-based Green Card petitions. | |
Expected Publication Date: August 2024 (NPRM) | Official Rule Link : Reginfo.gov – EB Green Card Changes Rule |
Current Status & Impact: As per DHS, NPRM is planned for August next year. It will be election year in 2024 and not sure how far this will go. They have many other high priorities on the plate. No details of the text are out yet other than some summary. The main focus is to bring more talent to the US by modifying some existing green card provisions. We need to wait and see what happens here. | |
Official Title of Rule: “Visas: Ineligibility Based on Public Charge “ | |
Summary : This rule is intended to review and revise the public charge-related rules for various Visas during the Visa stamping stage at the consulates. It is part of the US Department of State initiative. | |
Expected Publication Date : April 2024 (NPRM) | Official Rule Link : Reginfo.gov Public Charge Rule |
Current Status & Impact: DHS did a huge update around Public charge and US Department of State wants to do the same as well for US Visa Stampings at the Consulate. They want to revise and update the relevant regulations related to public charge to apply them at US Consulates. The text of the regulation is not out yet, we need to wait and see how it goes. It is not that straightforward to implement this in short amount of time. | |
Other Rules
- Also, they have a rule related to adjustment of status for EB-4 Category, that is planned for NPRM in March 2024.
- US Department of State wants to update the regulations around Diversity Immigrant visa program to provide valid unexpired passport info and other changes. This is planned for February 2024 for NPRM.
Nonimmigrant Workers, Dependents, EAD, Others & Fee Changes
Official Title of Rule: “Modernizing Regulations Governing Nonimmigrant Workers” | |
Summary: This proposed rule item is very broad and wants to change the regulations related to EAD requirements for nonimmigrants and their dependents. It could be dependents such as H4, L2, etc. They do not specifically name any visa type, but broadly say dependents of non-immigrant workers. They want to increase flexibility for nonimmigrant workers who either resign or lose a job. Maybe they are talking about changes to H1B 60 Days grace period. Also, they want to do some changes to religious workers regulations who have reached their maximum period of stay. | |
Expected Publication Date : October 2024 (NPRM) | Official Rule Link : Reginfo.gov – Nonimmigrant EAD Changes |
Current Status & Impact: This rule is very generic and does not really talk about specific visa types like H1B, H4 or L1. The regulation text is not out yet and it is in very early stages. Due to the pandemic and many nonimmigrants losing jobs in the last couple of years, maybe they want to put in some provisions in place to protect such nonimmigrants and their dependents. It is planned for October 2024, which is way too far in the timeline. With elections next year, this also could be one of those that may not get prioritized. We need to wait and see. | |
Official Title of Rule: “U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements” | |
Summary : USCIS had plans to change application fees for various forms starting in October 2020. There were some significant fee changes, and it was taken to court. Eventually, USCIS had to cancel the fee changes regulation. Check USCIS Fee increases Proposed & Cancelled . This regulatory item is to revisit that regulation and revise it with new set of fees for USCIS forms. They had a comment period for this and now going through various regions. They plan to increase fees for various Forms filed with USCIS with this regulation. | |
Expected Final Rule Date : April 2024 | Official Rule Link : Reginfo.gov USCIS Fee Changes |
Current Status & Impact : The fee changes proposed in Oct 2020 was really high for some forms and did not make sense, so it was taken to court and eventually, court gave order to cancel it. USCIS since them has been stuck with not able to change that. Now, Biden Administration would like to revise that and roll out something that works for everyone and do not do something that is crazy. It has been going through NPRM, Comments period was extended multiple times and now finally they want to publish the rule by April 2024. We need to wait and see how this goes this time around. | |
Other Rules
- There is also a rule that is targeted at removing unnecessary and obsolete procedures for F1, M and J visa visa holders that was part of the SEVIS System implementation.
US Department of Labor – PERM, Schedule A List
Official Title of Rule: “Labor Certification for Permanent Employment of Foreign Workers in the United States; Revising Schedule A to Include Updating Occupations in Science, Technology, Engineering, and Mathematics (STEM)” | |
Summary: The US Department of Labor(DOL) plans to update the Schedule A list of the PERM Labor process with more occupations that are part of 20 CFR 656.5 in science, technology, engineering, and mathematics (STEM). They plan to issue an RFI to get more details regarding the same. This is mainly aimed at removing the PERM process for specific fields that are in very high demand, such as Artificial intelligence and attract talent from across the globe without impacting American workers. | |
RFI : November 2023 | Official Rule Link : Reginfo.gov USCIS Fee Changes |
Current Status & Impact: This rule is based on an Executive Order that was signed by Biden around attracting talent around Artificial Intelligence. This is mainly an RFI to get more information. There are no details on the regulation yet. If this is implemented, all the newly added list of occupations will not have to go through the lengthy PERM process and can directly go to the I-140 stage to apply for green card. You can read more on the Biden’s Executive Order to attract AI Talent. | |
Conclusion
Overall, many of the items proposed in the Fall 2023 regulatory agenda will make life of immigrants better and avoid fraud. The most promising one is domestic visa renewals within the US for H1B visa holders. Also, the modernization of the H1B Visa program will have an impact on many of the future H1B applicants.
What do you think of the Fall 2023 Regulatory Agenda items by Biden’s team? Share your inputs in comments section below