DHS’ Regulatory Agenda for Fall 2019
On November 20, 2019, the Trump Administration released its Fall 2019 Unified Agenda, the semiannual summary of projected regulations by federal agencies. The Department of Homeland Security (DHS)’s regulatory agenda mostly includes proposals previously published in the 2017 and 2018 Unified Agendas related to proposed changes in the H-1B, H-4 EAD, F-1 and OPT programs. The Unified Agenda also includes new proposals that are in development with anticipated publication dates in late 2020.
Below we provide a short summary of the regulatory proposals previously announced in the Unified Agenda and the new proposals that relate to business immigration. Please note that the projected publication dates listed below are the government’s expected or anticipated dates of publication provided in the Unified Agenda and are subject to change.
Proposals Previously Announced in the Unified Agenda
Removing H-4 Dependent Spouses from the Classes of Aliens Eligible for Employment Authorization
The DHS’ much-anticipated and highly-publicized H-4 EAD rescission rule for certain spouses of H-1B holders has been on the Unified Agenda since Spring 2018. The proposal has been pending regulatory review by the Office of Management and Budget (OMB) since February 20, 2019. As noted in our previous Business Immigration Update, the DHS stated in a court filing in the ongoing federal litigation case Save Jobs USA v DHS that it is unlikely that the proposed H-4 EAD rescission rule will be published before Spring 2020.
Projected Publication Date: March 2020
Strengthening the H-1B Nonimmigrant Visa Classification Program
This proposal is another carry-over from the Spring 2018 Unified Agenda. DHS proposes “to revise the definition of specialty occupation to increase focus on obtaining the best and the brightest foreign nationals via the H-1B program and revise the definition of employment and employer-employee relationship to better protect U.S. workers and wages.”
The DHS proposal to change the definition of specialty occupation will likely have a negative impact on many employers of H-1B workers and will likely lead to extensive litigation as the term “specialty occupation” is defined by statute and cannot be changed by administrative rulemaking. Under the Administrative Procedures Act, such rulemaking is limited to interpreting the statutory definition. Furthermore, it remains unclear how DHS plans to revise the definition “employment” or “employer-employee relationship” to ensure that appropriate wages are being paid as current USCIS policy interpretation is already restrictive.
Projected Publication Date: December 2019
Establishing a Maximum Period of Authorized Stay for Students, Exchange Visitors, and Media Representatives
First announced in the Fall 2018 Unified Agenda, DHS’ proposal seeks to modify the period of authorized stay for certain categories of nonimmigrants (F, M, and J visas) who are admitted to the United States with "duration of status” (D/S). Foreign students are generally admitted with duration of status to allow them to pursue a full course of study, plus any authorized practical training following completion. The DHS’ proposal will impose a maximum period of authorized stay for each applicable visa category, with options for extensions. The purpose of the proposed rule is to decrease Immigration Customs and Enforcement’s (ICE) perceived high incidence of nonimmigrant student overstays.
Projected Publication Date: February 2020
Practical Training Reform
Originally appearing in the Fall 2017 Unified Agenda, the DHS/ICE proposes to amend existing regulations and revise the practical training options available to nonimmigrant students on F and M visas.
Projected Publication Date: August 2020
New Proposals Announced in Fall 2019 Unified Agenda
Strengthening the L-1 Nonimmigrant Classification
The DHS will propose to revise the definition of “specialized knowledge” for L-1 visas, to clarify the definition of employment and employer-employee relationship, and ensure employers pay appropriate wages to L-1 visa holders.
Projected Publication Date: September 2020
Enhancing the Integrity of the Unlawful Presence Inadmissibility Provisions
The DHS’ proposal will describe how unlawful presence accrues for the 3-year and 10-year bar, including whether certain failures to abide by the conditions of admission as a nonimmigrant result in the accrual of unlawful presence.
Projected Publication Date: September 2020