US Immigration Agencies Publish Latest Rulemaking Priorities

The Department of Homeland Security (“DHS”), Department of State (“DOS”), and other agencies have issued proposals for new regulations along with an indication of publication dates.

The proposals impact a number of US immigration routes including B1/B2 visitor visas, ESTA travellers, students and H-1B speciality occupation workers and their H-4 visa dependents, among others.

We summarise the changes briefly below, but should have any specific queries, please do contact us for advice on your circumstances.

H-1B visa

Under proposed new rules, the DHS is seeking to amend the definition of ‘speciality worker’ to narrow availability of the route to the “best and brightest foreign nationals.”

We are also expecting the introduction of more restrictive definitions of ‘employment’ and ‘employer-employee relationship’ in the context of the H-1B route, with the intention of limiting placement of H-1B workers offsite at third-party locations.

New wage requirements for H-1B visa workers are also likely to be imposed, along with a new system for allocating H-1B cap visas, to give priority to the highest-paid beneficiaries.

The proposed changes may be fast-tracked by the Administration to take immediate effect by way of interim final rules.

H-4 visa

The proposal to abolish employment authorization for certain H-4 spouses had initially been announced in December 2017. The publication date for public comment is now expected September 2020.

The detail released to date remains unclear if the change is to apply to valid, previously-issued H-4 EADs.

B1 / B2 visitor visas

A series of proposals relate to the US B visa visitor routes:

Closure of ‘B1 in lieu of’

DOS has proposed to close the “B-1 in Lieu of H-1B” and “B-1 in Lieu of H-3 Classifications”. This would in effect mean the B-1 visitor visa could not be used by foreign nationals seeking to enter the US on a short-term basis for employment or labor pursuant to a contract or other “pre-arrangement.”

The timeframe for publishing public comment has been postponed from June 2020.

Amendment to B visa admission and extension periods

DHS proposals will see changes to the current B1/B2 visa period of admission and extensions of stay. Currently, B visa holders can remain for up to 6 months, and apply to USCIS extend for a further 6 months while in-country.

The anticipated publication date for public comment was June 2020 but has been postponed.

Maintenance of Status & Departure Bond

DOS is looking to pilot a new program requiring certain individuals applying for B visas to post a “Maintenance of Status and Departure Bond” as a condition of visa issuance. The purpose of the proposed bond is to ensure that the visa applicant will not overstay their period of lawful admission in the US.

The final rule is expected to be published in July 2020.

ESTA

Under current rules, VWP-eligible travelers entering the US via a land port-of-entry must complete form I-94. DHS has proposed to modify this requirement so that travelers provide this information to US CBP through ESTA to seek admission to the US.

This change could take effect at any time, with implementation having been expected last month as an interim rule.

Student visas

Immigration and Customs Enforcement (ICE) is proposing to restrict current Optional Practical Training (OPT) and Curricular Practical Training (CPT) Programs rules that allow international students under the F-1 and M-1 categories to remain in the US post-study.

The updated anticipated publication date for public comment is December 2020, but may well be expedited by the Administration.

Removing “Duration of Status” (D/S) for certain F-1, J-1 and I visa holders

ICE is proposing to remove the availability of admission for ‘duration of status’ (D/S) granted to certain international students, exchange visitors, and representatives.

D/S allows the visa holder to remain in the US until their intended activity in the country is complete. Without D/S, each foreign national seeking admission in the impacted categories would be authorized to stay in the US until a specified date.

This proposed rule is expected to be published for public comment in July 2020.

Filing fee increases

DHS proposed to increase certain filing fees by 21 percent, while also introducing new charges for specific immigration applications, establish multiple fees for petitions for nonimmigrant workers, and limit the number of beneficiaries who may be included on certain forms.

A final DHS rule to implement the proposed fee changes is scheduled to be published in September 2020.

DOS also seeks to amend certain nonimmigrant and immigrant visa fees, special visa services fees, security surcharge fees, and certain citizenship service fees. Further, if approved, this rule would amend the application fees for US passport books and cards.

The anticipated publication date for public comment was June 2020, but it has been delayed.

US immigration advice

US immigration policy and regulations continue to change at rapid pace. For the latest advice for your specific circumstances, please contact our US immigration specialists.

This article does not constitute direct legal advice and is for informational purposes only.

Last updated: June 30, 2020