Spring 2020 Regulatory Agenda for H1B, H4 EAD Removal, F1 OPT, Others

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 : December 2020

Official Rule Link : Reginfo.gov – H1B Definition Change

Current Status & Impact :   This item has been on the agenda since Spring 2018 agenda, it continued to be in Fall 2018, Spring 2019 and Fall 2019 Agenda…They have been just moving the dates. Now the date for issuing notice for proposed rulemaking (NPRM) is moved to Dec 2020.  Recently, USCIS updated their Policy on Employer-Employee and Itinerary as part of court settlement as that was not part of regulation. Now, this aims to change the definitions, so that they do not end up in lawsuits like the recent one. Also, the recent Trump proclamation to ban for H1B holders entry to US, mentioned that DOL, DHS to review the work visa programs. The current economic situation in US and unemployment may make the current administration focus on this and this may have a huge impact on H1B visa program, depending on what comes out of the regulatory process.  

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 :  Sep 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, and Fall 2019 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 from March 2020 to Sep 2020.  You can check H4 EAD Removal History – News for full info.

With current unemployment situation in America, this could be a priority for DHS. Their was always to remove it and they said the same to court.  We need to wait and see how this goes as there could be potential litigations as well, if H4 EAD is removed.

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.

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 Publication Date : July 2020

Official Rule Link : Reginfo.gov – F1 Max Stay

Current Status & Impact :   They just changed the title of the rule and this has been on unified agenda since Fall 2018 agenda, nothing has changed. 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 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. Looking at the NPRM dates,  I highly doubt, if they can release something meaningful in July 2020. Let’s see.

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.

Expected Publication Date : Dec 2020

Official Rule Link : RegInfo.gov – CPT OPT Changes

Current Status & Impact : This originally appeared in Fall 2017 agenda, then was in couple of agendas, but was not part of Spring 2019 agenda and now back in Fall 2019 and now in Spring 2020 agenda.  There were speculations in the Trump Travel Ban Rumors that there will something related to OPT and STEMP OPT, but the final order did not talk about it. The NPRM date of December 2020 seems practical, but we need to wait and see as this has been delayed many times.

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. 

Official Title of Rule:  “Admission, Extension, and Maintenance of Status 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 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.

Expected Publication Date : September 2020 (NPRM)

Official Rule Link : RegInfo B1 – B2 Visitors Visa

Current Status & Impact :  The title of this changed in Spring 2020 agenda, but this was in Fall 2018 agenda, then removed in Spring 2019 and now continues to be in Fall 2019 and Spring 2020 agendas. 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. They have mistakenly put in date as June 2020, I am not sure how they even missed the date.  So, technically there is no estimated date too.

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.  

Expected Publication Date : Mar 2021

Official Rule Link : Reginfo.gov – Unlawful Presence

Current Status & Impact  : This was in Fall 2019 agenda and now is part of Spring 2020 agenda too. Nothing has changed.  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 year March, so long way to go…

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 Publication Date : July 2020

Official Rule Link : Reginfo.gov – Biometrics Changes

Current Status & Impact :  This agenda item also appeared in Spring 2019, Fall 2019 agenda. Not much progress was made since last fall. 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. 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….The date of July 2020 does not sound realistic for implementing this.  

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 Changes Rule on Federal Register 2019

Final Action :  Sep 2020

Official Rule Link : Reginfo.gov – Fee Changes

Current Status & Impact  : The rule for fee changes was already published and it has significant fee hike. It was in comment period for public to give their feedback until Dec 16^th, 2019 and then extended until Feb 2020. 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 types of fee increase for other visa types. This is a significant fee change for other form types and details could change in future. They plan to have this final by Sept 2020