Biden Administration released their first regulatory agenda last week since they took office in Jan 2021. The Regulatory Agenda or Unified is the list of items that the US Federal Govt. publishes twice a year to outline their plans in the next months. These are the prioritized list of the current administration planned actions.
There were a lot of last-minute items added by the outgoing Trump administration in the Fall 2020 Midnight Regulatory Agenda. Many of those are either withdrawn or do not appear in the Spring 2021 agenda. In this article, we will review the list of regulatory items prioritized by Biden in the context of immigration around H1B, H4, L1, F1, B1 and other visa types.
Summary of Spring 2021 Regulatory Agenda for H1B, H4, F1, L1, Other Visas :
If we compare the current Spring 2021 regulatory agenda with the previous Fall 2021 regulatory agenda, there are quite a few changes.
- The number of items related to immigration especially H1B, H4, F1, Green Cards, etc. has reduced.
- In the past, there were many regulations that were very restrictive adding new things or removing things like H4 EAD listed as priorities.
- Many of those that items that were listed in the previous Fall 2020 regulatory agenda are withdrawn by the Biden Administration. We will review these at the end.
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 8 months in the context of H1B, H4, F1, and other visa holders.
- Modernizing H1B Program, increase oversight, and provide flexibility for F1 program
- Review Inadmissibility on Public Charge Grounds
- Adjustment to Premium Processing like H4, H4 EAD, Others
- USCIS Fee Schedule
Let’s look at each of the above items in detail.
H1B Visa related items in Spring 2021 Regulatory Agenda
Official Title of Rule: “Modernizing H-1B Requirements and Oversight and Providing Flexibility in the F-1 Program”
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 : December 2021 (NPRM)
Official Rule Link : Reginfo.gov – H1B Modernize, F1 Flexibility
Current Status & Impact : There is no regulatory text of the agenda item, but it is likely going to be around some of the past changes that were proposed under Trump Administration and the canceled rule with H1B Definition Change, 1 year Approvals, Site Visits. The big addition from the past is additions around F1 Visa Cap gap and amendments. At this point, we do not have any details. Depending on the changes proposed, it could have a huge impact on the H1B program.
Green Card Related Agenda Items from Spring 2021
Official Title of Rule: “Inadmissibility on Public Charge Grounds”
Summary : This rule is intended to review the overall public charge rule and deportability rules tied to public charge. It is based on Biden’s Executive Order 14012, which had the high level theme to restore faith in US Legal immigration System. Biden Administration removed the public charge rule in March 2021 as an outcome of their decision not to defend the previous lawsuit on public charge rule.
Expected Publication Date : August 2021 (ANPRM)
Official Rule Link : Reginfo.gov Public Charge Rule
Current Status & Impact : The Trump era Public charge rule was one of the most debated topics and it even went to the Supreme Court. This impacts a lot of people seeking Green Cards. We are yet to see the details on this, but it is very likely going to be a positive change. That’s why they are releasing it for Advance Notice of Proposed Rulemaking(ANPRM), instead of standard NPRM to get feedback.
USCIS Premium Processing for H4, EAD, Others & Fee Changes
Official Title of Rule: “Adjustment of Premium Processing”
Summary : US Congress passed a stopgap spending Bill in September 2020. As part of that they added provisions to change premium processing fee and add premium processing option for H4, EAD, L2, Others. USCIS has not taken any action to implement this yet. It needs to go through regulation, so this is aimed at implementing the same. For more, check USCIS Premium Processing for H4, L2, EAD
Expected Final Action Date : Sep 2021
Official Rule Link : Reginfo.gov – Premium Processing
Current Status & Impact : USCIS provides Premium Processing that guarantees a decision on the petition within 15 days for many types of petitions like H1B, I-140 petitions, etc. As there were funding issues last year, they added this provision to include the same premium processing for H4, L2, EAD, etc. Biden team’s goal is to mainly fix the current backlogs in processing times, so they are taking this as a lower priority and doing it slightly later. Nevertheless, this will fix a lot of issues for H4 and L2 EAD holders, who lost jobs due to processing time delays.
Official Title of Rule: “U.S. Citizenship and Immigration Services Fee Schedule”
Summary : USCIS had plans to change application fees for various forms from 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.
Expected Rule Date : Nov 2021
Official Rule Link : Reginfo.gov USCIS Fee Changes
Current Status & Impact : The fee is revised now and then by USCIS as per standard procedures. But, 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. This will definitely increase the fee for many of the forms. We are yet to see the details.
Rules Withdrawn in Spring 2021 Regulatory Agenda
- Fixed Time period for Extensions of F1 Students, and others : When 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). Trump Administration wanted to change this. Biden Administration has put up a regulatory item to withdraw this item as part of the Spring 2021 Regulatory Agenda. Check Reginfo.gov Official Notice of Withdrawal
- Practical Training Reform: This rule was 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. Now, it is withdrawn by Biden Administration. Check Reginfo.gov – Practical Training Reform
- Unlawful Presence Rule : DHS had plans to review the unlawful presence rules for 3 year and 10 year bar to enter the US. This was also withdrawn by Biden Administration. Check Reginfo.gov Unlawful Presence
- H4 EAD Removal : The regulatory item to remove H4 EAD did not appear in the Spring 2021 agenda, but was part of the Fall 2020 agenda. The status of H4 EAD removal was withdrawn in Jan 2021 after the OMB Review was concluded. Check Reginfo.gov final Action withdrawal of H4 EAD rule
Overall, there are a lot of rules that are withdrawn or rather not pursued by the Biden Administration. Many of the previously proposed regulations by Trump were anti-immigrant. The current administration’s outlook towards immigration is better. There are some long-term agenda items that do not have a deadline, which we did not cover in this article, they all look positive as well.
What do you think of the Spring Regulatory Agenda items for 2021 by Biden’s team ?