The Biden administration’s Unified Regulatory and Deregulatory Action Agenda captures the actions the administrative agencies plan to release in the near and long term. Published by the Office of Information and Regulatory Affairs, the agenda provides important public notice and transparency on proposed regulatory and deregulatory actions within the executive branch. In the ever-changing field of U.S. immigration law, it is essential to stay abreast of general agency policy positions as well as practical and jurisdictional changes contemplated by relevant agencies, including the Departments of Homeland Security ( DHS), Labor (DOL), and State. (BACK). Such knowledge facilitates immigration planning and the successful application of immigration benefits for practitioners, businesses and individual applicants. Let’s take a look at some of the important agenda items announced by the agencies:
MODERNIZATION OF H-1B REQUIREMENTS AND SUPERVISION:
the proposals consider:
- Redefining the definition of “employer-employee relationship”, which would have a direct impact on common third-party placements in the IT consulting industry.
- Implemented new guidelines regarding on-site visits conducted by Fraud Detection and National Security (FDNS) for compliance checks for H-1B dependent employers whose “basic business information cannot be validated by data available in trade”.
- Clarify/codify cap-gap rules applicable to F-1 students filing H-1B cap-subject applications seeking to change status for which OPT employment will expire for the duration of the cap application H-1B.
- Strengthen the relatively new H-1B Cap-Subject electronic registration process released two cycles ago to reduce the risk of abuse and fraud.
- Clarify the requirement that an amended or new petition must be filed in the event of material changes in the reported facts, including “simplifying the notification requirements for reporting certain workplace changes.”
EFFECTIVE SALARY INCREASES:
- The rule previously proposed by the DOL to increase the effective salary rates for the H-1B, H-1B1, E-3 and PERM programs is reaffirmed. Specifically, it is a proposed rule to establish a new wage methodology for setting prevailing wage levels that would result in increases to the authorized minimum wage rate payable to employees benefiting from these programs (above the usual increases linked to inflation).
UPDATED ADJUSTMENT OF STATUS (AOS) PROCEDURES FOR MORE EFFICIENT PROCESSING AND USE OF IMMIGRANT VISA:
- Visa regression and incredibly long processing times for AOS applications are the norm. For example, at the time of this writing, the estimated processing times posted for the Texas Service Center employment-based Form I-485 is currently 32.5 months. Due to these excessively long processing times, applicants can face serious obstacles in obtaining work authorization and international travel if the company does not start the process years before the deadline for expiration of their nonimmigrant visa. To make this worse, the premium (fast track) processing service has never been available for AOS applications, so applicants have no choice but to wait…for years. It appears that DHS is seeking to improve policies and practices in many compartments to reduce processing times and improve efficiency in the use of all available visa numbers per year. By way of illustration, due to the unprecedented impacts of the COVID-19 pandemic resulting in an excessive number of visas in the EB-1 and EB-2 categories, USCIS has taken the unusual proactive step of encouraging applicants eligible to submit their AOS applications before the end of the financial year on September 30, 2022.
US CITIZENSHIP AND IMMIGRATION SERVICES (USCIS) AND DOS FEE INCREASES:
- USCIS has announced plans to increase petition and petition filing fees. As a fee-funded agency under fire for extremely long processing times and backlogs, we could see dramatic increases in filing fees as the government attempts to clean up its piles and hire/train additional workers to accomplish this task.
- Similarly, DOS is seeking to increase the nonimmigrant visa application fee for several categories, the border crossing card fee for Mexican citizens over 15 years of age, and the J-1 waiver of the visa requirement fee. two-year residency. This fee is part of Embassy/Consular processing, separate from filings with USCIS.
Continue to stay tuned for further updates as specific details and hard information become public knowledge.