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Major Changes for the Business Community: Department of Homeland Security Releases Spring Regulatory Agenda

June 26, 2019

The Department of Homeland Security (DHS) released its Spring 2019 Regulatory Agenda, announcing the agency's priorities and how it plans to continue furthering the current administration's immigration-related goals.

The following is a selection of the proposed changes of significance to the business community:

Terminating Work Authorization for H-4 Dependent Visa Holders
The DHS is proposing to remove employment authorization for certain H-4 workers. The Office of Management and Budget is reviewing the proposed rule and the details of the proposal have not yet been released; however, it is predicted that the DHS will publish the proposed rule as early as fall 2019. The proposed regulation will affect Indian and mainland China-born dependent spouses of H-1B principal visa holders.

Requirement for H-1B Registration Fee
DHS is also proposing to add another fee for employers filing H-1B petitions. Under this proposal, employers will pay a fee to register to enter the H-1B lottery in addition to the fees already required to submit the full application if they are selected from the lottery. The publication of a full proposal is expected as early as next month and likely will be implemented when the new registration system opens in 2020.

Changing H-1B Eligibility and Wage Requirements
In another proposed regulation, DHS seeks to redefine H-1B "specialty occupation to increase focus on obtaining the best and the brightest foreign nationals via the H-1B program" and to redefine "employment and employer-employee relationship to better protect U.S. workers and wages." However, "specialty occupation" is defined by statute under the Immigration and Nationality Act (INA). Because the power to amend the INA is limited to Congress, it is unclear how DHS plans to accomplish this. The proposal also includes increased wage requirements for H-1B workers. This is expected to be released for public comment in August 2019.

Electronic System for Travel Authorization at Land Borders
DHS is also seeking to implement the Electronic System for Travel Authorization requirements for foreign nationals entering the United States through the Visa Waiver Program (VWP) at land ports of entry. VWP travelers will now be required to provide certain biographic information to Customs and Border Patrol prior to application for admission to the United States rather than on a paper I-94W Form at land ports of entry. This proposal has already been implemented for VWP arrivals at air and sea ports of entry.

Establishing Maximum Period of Stay for F-1 Visa Holders
Immigration and Customs Enforcement is expected to propose a new rule to replace the "duration of status" of F-1 nonimmigrants to "a maximum period of authorized stay, and options for extensions, for each applicable visa category." Currently, it takes a formal determination of a violation for an F-1 visa holder to have overstayed their duration of status. This proposal would be in line with the administration's attempts to curb visa overstays. It also has the potential to restrict Optional Practical Training programs and other extensions currently available to F-1 students seeking to complete their education or internships in the United States.

Ending Concurrent Filing of I-485 for "Efficiency"
DHS is also expected to propose a regulation that would eliminate concurrent filing of Form I-485 and visa petitions for applicants seeking immigrant visas under a preference category. DHS believes that elimination of concurrent filing will increase efficiency by reducing processing times, improving data quality provided to partner agencies, reducing potential for retrogression of visas, promoting efficient use of available immigrant visas and discouraging fraud. However, this could have serious ramifications, especially for immigrants needing to file an I-485 to preserve lawful status or for those seeking adjustment-based employment authorization document cards quickly to sustain their work authorization.

Finally, the DHS is also expected to publish a final rule in September of this year redefining "public charge." For more information about the proposed rule, please see our coverage of it here.

While many of these proposed regulations are expected to be released for public comment shortly, it is important to note that they will not have immediate effect as administrative rulemaking can be a lengthy process. Before it can be implemented, a proposed rule must undergo a months-long approval process in which it is published for public comment and then as a final rule. Further, postponement of proposed rules or final rules is not uncommon.

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