Upcoming Immigration Regulatory Changes

July 7, 2022

At the beginning of each fiscal year, U.S. government agencies announce their regulatory agendas, which guide the agencies’ future actions. Here are the most relevant short and long-term regulatory changes that have been proposed recently by the U.S. Department of Homeland Security, the U.S. Department of Labor, and the U.S. Department of State:

U.S. Department of Homeland Security (DHS)

Increasing Filing Fees: DHS seeks to increase filing fees, which will increase fees charged by U.S. Citizenship and Immigration Services (USCIS) to process most nonimmigrant and immigrant benefit requests. The proposed fee increase rule is expected to be published in September 2022. Separately, USCIS proposes to increase filing fees for H-1B and L-1 visa program dependent employers (those who are classified as dependent employers with over 50 employees, 50% of whom are in either H-1B or L-1 visa status).

Amending the L-1 Visa Program: DHS will propose revisions of the definitions of “Specialized Knowledge,” “employment” and “employer-employee” relationship in the context of the L-1 Intracompany Transferee Visa Program.

Revising I-485 Adjustment of Status Procedures (especially for religious workers and special immigrants): DHS will publish a proposed rule in May 2023, which would improve the processing of adjustment of status applications in order to reduce processing times and expand the availability of concurrent filing (the filing of immigrant petitions and adjustment of status applications at the same time) for religious workers and special immigrants (the 4th employment based immigration preference category).

Amending H-1B Program Requirements: DHS seeks to revise H-1B visa program regulations related to “employer-employee relationship,” work site visits for H-1B dependent employers, streamlining of the H-1B registration process, as well as regulations related to individuals changing from F-1 visa to H-1B visa status (cap-gap issues) and updated guidelines for site visits.

Implementing “Known Employer Program”: DHS will propose permanent implementation of its pilot “Known Employer Program,” in order to facilitate adjudication of several employment-based nonimmigrant and immigrant visa applications filed by vetted employers.

U.S. Department of Labor (DOL)

Revising Prevailing Wage Methodology and Increase in Prevailing Wages for H-1B, PERM, and E-3 Categories: The DOL recently published an interim rule, which will revise the methodology utilized to determine minimum wages for certain nonimmigrant and immigrant workers. It will result in increased prevailing wages for applicable categories. The DOL has taken the position that prevailing wages have long been set below the rates at which similarly U.S. workers are paid. The final rule is expected to be published in October 2022.

U.S. Department of State (DOS)

Increasing Consular Visa Fees. The U.S. Department of State (DOS) has proposed consular fee increases will impact applicants for non-petition-based visas (business and tourist travelers; students and exchange visitors; crew and transit visitors; and representatives of foreign media), and petition-based visas (temporary workers and trainees; intracompany transferees; individuals of extraordinary abilities; athletes, artists, and entertainers; cultural exchange participants; and religious workers). Non-petition-based visa fees will increase from $160.00 to $245.00. Petition-based visa fees will increase from $190.00 to $310.00.

Ending B-1 in lieu of H-1B Visa Policy. DOS is proposing to discontinue the issuance of B-1 visas for individuals classifiable as H-1B or H-3 nonimmigrants, unless the applicant independently qualifies for a B-1 visa.

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Hernández García, Edwin M. Associate Associate 212.574.0320 VCard
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