As many of you know, twice a year, the US Federal Government publishes their Regulatory agenda outlining their priorities for the upcoming months. Similar to previous year’s Fall 2018 Regulatory Agenda, USCIS published their Spring 2019 regulatory agenda / Unified Agenda with their list of priorities for the upcoming months. Some of them just carried over from Fall 2018 regulatory agenda, while there are some new ones and some of them are off the list as well. We will review all of these priorities of DHS and USCIS related to the visa types such as H1B, H4, F1, others that are relevant for our readers from Spring 2019 Regulatory Agenda.
Summary of the Spring 2019 Regulatory Agenda for H1B, H4, F1 and other Visas :
We have few items that are added from previous agenda, some just carried over and few of them were completed. Let’s look at each of them by type and review their status.
H1B Visa Related Rules in Spring 2019 Unified Agenda
Official Title of Rule: “Fee for Registration Requirement for Petitioners Seeking To File H-1B Petitions on Behalf of Cap Subject Aliens ”
Summary : DHS will propose to amend its regulations to require a fee for H1 Registration Process.
Current Status & Impact : As many of you know, USCIS published H1B Registration Rule, which will be in full effect for H1B FY 2021 season. But, when they published it they said, there will not be any fee…Now, with this regulation, they want to change that and collect fee for the New H1B Registration Process, that will happen, instead of current H1B Lottery Process. No details on the fee yet, but this will happen as proposed by end of this, so that they can use it for FY 2021 H1B season…It may have impact on how many people file for H1B, if the fee is going to be high…
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 : This item has been in Spring 2018 agenda and Fall 2018 agenda…They kept moving…The NPRM Date has not changed from Fall 2018 agenda, it still stays as August 2018. Trump administration has already done some 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. Need to wait and see…
H4 Visa Related Rules in Spring 2019 Unified Agenda
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 was in Spring 2018 Agenda and Fall 2018 Agenda. This rule comes as an outcome of Trump Administration’s general policy changes and from the legal battle raised by SAVE Jobs USA in court. Currently, the lawsuit in court for H4 EAD rule is in full swing and all the briefs were submitted by DHS, Save Jobs USA and Immigration Voice. Many are waiting for court next steps. In parallel, we have the OMB review meetings happening, which was supposed to close by May 20th, but it seems they extended by some more time. In any case, this is one of the most discussed regulation and lawsuit and 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 May 2019, it is slightly tight as we have only a week left for it…need to wait and see, if they publish something… 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 in Spring 2019 Unified Agenda
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 was in Fall 2018 agenda. Nothing has moved, the date has not changed and it stays Sep 2019, which was set in last year agenda too…in any case, 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 and ICE Related Rules in Spring 2019 Unified Agenda
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 was in Fall 2018 agenda. 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. They have changed the date from Sep 2019 to Feb 2020, so it has a long way to go. 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: “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 ”
Summary : This rule is intended to make sure there are enough checks in place to handle students SEVIS Data. Designated School officials (DSOs) and other Responsible Officers (ROs ) have access to all F and M students data. As part of national security, they want to make sure DSOs and ROs go through checks and ensure they get security clearance to access the data and protect sensitive info as it is related to national security.
Current Status & Impact : This was part of Fall 2018 agenda, but the NPRM date moved to March of next year. The rule has no impact on students or professionals, but targeted towards DSOs to make sure they get security clearance to access students data to avoid potential fraud or criminal activities.
General Visa and USCIS Process Related Rules in Spring 2019 Unified Agenda
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. 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 has a long way to go…I highly doubt, if something will happen soon on this..
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 : USCIS has introduced Biometrics for Form I-539 like H4, 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. They want to change that. 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. This is part of Trump national security agenda as well.
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. While it does not really tell that there will be fee increase, but usually such reviews come up with fee increases
Current Status & Impact In general, with the increase scrutiny and other process in place to avoid fraud, we can expect the overheads for the USCIS to be high and could potentially result in increase of the Fee for H1B, H4 and other EAD programs. We have to wait and see, but it quite possible for fee increase.
Removed Ones from 2018 Fall Regulatory Agenda
“Nonimmigrant Classes: Temporary Visitors to the United States for Business or Pleasure ” – B1/ B2 . DHS wanted to amend the regulations for temporary visitors for B1 and B2
“Registration Requirement for Petitioners Seeking To File H-1B Petitions on Behalf of Cap Subject Aliens” – USCIS actually implanted this, so it is off the list.
What do you think of the Spring 2019 Regulatory Agenda Items ?