The Department of Homeland Security (DHS) released its fall 2018 regulatory agenda, laying out its rulemaking goals through 2019. The published timeline is aspirational and does not represent a strict schedule. In fact, many items on the agenda are familiar carryovers from the past. Because the rulemaking process is multipronged, the time between the introduction of a proposed rule and implementation of the final rule can be lengthy. For that reason, regulatory agendas are perhaps most beneficial in that they provide insight into the agency’s priorities and give the public a general idea of what the agency hopes to accomplish in the foreseeable future.
The following is a list of regulations, either anticipated or proposed, that are likely to have an impact on employment-based immigration, if implemented.
Proposed Regulations – Pending Public Comment:
Redefining Public Charge: In October 2018, DHS published notice of its proposed changes to determinations of inadmissibility based on public charge grounds, redefining not only who would qualify as a public charge, but also what public benefits could be factored into the determination. The proposed rule creates a weighted framework for establishing an individual’s likelihood of becoming a public charge and relying on the government to provide the basic necessities of life, such as food, shelter, and medical care. The proposed rule is currently open for public comment until December 10, 2018. DHS has already said that the rule will not go into effect until 60 days after the final rule is published in the Federal Register, to allow people time to separate themselves from public support programs.
Anticipated Regulations – Not Yet Formally Introduced:
H-1B Preregistration System: Pursuant to the goals of President Trump’s Buy American and Hire American executive order, DHS is expected to propose the implementation of a new system requiring petitioners to preregister for a spot in the H-1B cap lottery. Only those selected for adjudication would submit an actual H-1B petition. The rule is similar to one proposed in 2011 that was never finalized and is expected to be published in the Federal Register before the end of October 2018. L. Francis Cissna, director of U.S. Citizenship and Immigration Services (USCIS), said that USCIS hopes to have the new process up and running in time for the next H-1B cycle, which will begin on April 1, 2019. It is not yet clear whether such a short timeline will be adequate.
Ending H-4 Work Authorization: Recent court filings have made it clear that DHS continues to move toward fulfilling its goal of putting an end to H-4 work authorization. The regulatory agenda suggests that DHS plans to publish its proposed rule on this topic sometime in November 2018, but it is not yet clear exactly how DHS intends to unwind the program. Even if the rescission is introduced before the end of the year, it must still undergo public comment and is not likely to be finalized until sometime in 2019.
Biometric Data: Biometric data is the subject of two anticipated regulations. The first seeks to expand the collection of biometric information from foreign nationals when entering and exiting the United States. The proposed rule is expected to include provisions requiring photographs that would be used for facial recognition upon entry and departure. It is scheduled for publication in December 2018.
The second rule proposes to expand the use of facial recognition to all travelers, including U.S. citizens, in an effort to help identify criminals and known or suspected terrorists. The proposed rule is expected to be published in February 2019.
Fee Increases: DHS is expected to propose fee increases in February 2019.
Narrowing the Scope of Specialty Occupations: In a long-anticipated move, DHS is expected to propose a revised definition of an H-1B specialty occupation, which the agency says is intended to help focus the program on only “the best and brightest foreign nationals.” It also intends to revise the definitions of “employment” and “employer-employee relationships.” The changes are expected to take a more narrow view of what qualifies as an employer and what work arrangements qualify as employment. The NPRM is expected in August 2019.
Ending Concurrent Filing of the I-485: In a rule called Updating Adjustment of Status Procedures for More Efficient Processing and Immigrant Visa Usage, DHS is proposing to put an end to the concurrent filing of the I-485 with either an I-140 (employment-based) or I-130 (family-based) petition when applying for adjustment of status. Specifics have not been released about how the new policy would be implemented. The proposed rule is not expected to be published in the Federal Register until September 2019.
Establishing a Maximum Period of Stay for F-1 and Other Nonimmigrants: U.S. Immigration and Customs Enforcement (ICE) is expected to propose a rule establishing a maximum period of stay for certain categories of nonimmigrants, such as F-1 students, to be used in lieu of “duration of status.” No specifics have been announced. It is expected to be published in September 2019.
Clarification of Criteria for B-1 and B-2 Classification: DHS is proposing to clarify the requirements for B-1 and B-2 visa classification. This is a carryover item that was originally slated to be published in November 2018 but has now been bumped back to September 2019.
Ogletree Deakins’ Immigration Practice Group will continue to monitor developments with respect to the proposed regulations and will post updates on the Immigration blog as additional information becomes available.