Shaun is a business immigration attorney with broad international experience who counsels individuals and businesses across all industries in navigating the complex U.S. immigration system. He focuses his practice on employment-based visas...Read More by Author
The U.S. Department of Homeland Security and Other Agencies Announce Their Spring 2022 Unified Agenda: Immigration Focus
The Biden Administration’s Unified Agenda of Regulatory and Deregulatory Actions reports on the actions administrative agencies plan to issue in the near and long term. Released by the Office of Information and Regulatory Affairs, the Agenda provides important public notice and transparency about proposed regulatory and deregulatory actions within the Executive Branch. In the constantly evolving field of U.S. immigration law, it is essential to stay abreast of general agency policy stances as well as practical and adjudicatory changes contemplated by the involved agencies including the Departments of Homeland Security (DHS), Labor (DOL), and State (DOS). Such knowledge facilitates immigration planning and successful filings for immigration benefits for practitioners, businesses, and individual applicants alike. Let’s take a look at some of the big-ticket agenda items announced by the agencies:
Modernizing H-1B Requirements & Oversight:
the proposals contemplate:
- Redefining the definition of the “employer-employee relationship,” which would directly impact third-party placements common across the IT consulting industry.
- Implementing new guidelines concerning 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 through commercially available data.”
- Clarifying/codifying “cap-gap” rules applicable to F-1 students filing H-1B cap-Subject petitions seeking to change status for whom OPT employment will expire during the pendency of the H-1B cap petition.
- Bolstering the relatively novel H-1B Cap-Subject electronic registration process released two cycles ago to reduce the possibility of misuses and fraud.
- Clarifying the requirement that an amended or new petition be filed where there are material changes to the reported facts, including by “streamlining notification requirements to report certain worksite changes.”
Prevailing Wage Increases:
- DOL’s prior proposed rule to raise prevailing wage rates for H-1B, H-1B1, E-3, and PERM programs is reaffirmed. Specifically, it is a proposed rule to establish new wage methodology for setting prevailing wage levels that would result in increases to the minimum permissible wage rate payable to employee beneficiaries in these programs (beyond the usual increases tied to inflation).
Updating Adjustment of Status (AOS) Procedures for More Efficient Processing and Immigrant visa Usage:
- Visa retrogression and unfathomably long processing times for AOS applications are the norm. For instance, as of this writing, posted estimated processing times for employment-based Form I-485 at the Texas Service Center are currently 32.5 months. Because of these inordinately long processing times, applicants can and do run into serious work authorization and international travel impediments if the business does not initiate the process years before their non-immigrant visa max-out date. To compound this, premium processing (expedited) service has never been available for AOS applications, so applicants have no choice but to wait…for years. It seems that DHS is seeking to improve policies and practices across many buckets to reduce processing times and improve efficiency in using all available visa numbers per annum. For illustration, due to unprecedented impacts of the COVID-19 pandemic resulting in excess visa numbers in the EB-1 and EB-2 categories, USCIS has taken the unusual proactive step of encouraging eligible applicants to submit their AOS applications prior to the end of the fiscal year on September 30, 2022.
U.S. Citizenship and Immigration Services (USCIS) & DOS Fee Increases:
- USCIS has announced it intends to increase petition and application filing fees. As a fee-funded agency under fire for exceedingly long processing times and backlogs, we could see dramatic increases in filing fees as the government attempts to clear out its piles and hire/train additional workers to achieve that task.
- Similarly, DOS seeks to increase nonimmigrant visa application fees for several categories, the Border Crossing Card fee for Mexican citizens above age 15, and the J-1 Waiver of the Two-Year Residency Requirement fee. These fees are a part of embassy/consular processing, distinct from USCIS filings.
Continue to stay tuned for further updates as specific details and concrete information becomes public knowledge. And you can always reach out to your Obermayer Immigration Counsel for case-specific guidance.
The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.