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Summary of the Spring 2020 Unified Regulatory Agenda

July 6, 2020

There are multiple immigration-related regulatory provisions in the Spring 2020 Unified Agenda.  Most notably, the proposals from DHS include various changes to the rules surrounding H-1B, B, F and M visas, and work authorization/EADs, as well as sweeping changes that would apply to all foreign nationals.

 

H-1B VISAS

1615-AC13 | In what DHS refers to as “strengthening the H-1B non-immigrant visa classification program,” it sets out to revise the definition of “specialty occupation”, “employment”, and “employer-employee” relationship.  It also seeks to propose additional wage requirements on employers.

 

B VISAS

1400-AE99 | The Agenda contains a proposed regulation that includes the creation and implementation of a pilot program in which certain individuals applying for visas as temporary visitors for business or pleasure (B-1 and B-2 visa seekers) would be required to post a “Maintenance of Status and Departure Bond” as a condition of visa issuance.  This would be DHS’s way of ensuring the temporary nature of the visit, even though evidence of this already must be shown by way of continuing ties to the individual’s home country, etc.

1651-AA99 | DHS seeks to amend the period of stay and extensions of stay for B-1 and B-2 temporary visitors.

 

F AND M VISAS

1653-AA76 | While the Agenda does not elaborate on the exact changes anticipated, it states that ICE hopes to amend existing regulations and revise the practical training options available to non-immigrant students on F and M visas.  F visas are those held by students studying academia, while M visas are held by students in vocational training.  Practical training options that are currently available to students after graduation include a one year OPT option and an additional two years for STEM students.

1653-AA78 |  The Agenda includes a proposed rule that would establish a fixed time period for admission and extension of stay for certain non-immigrants, including certain academic students, which would eliminate the current option for the “duration of status” indication on I-94s for certain categories of non-immigrants traveling to the United States.  The regulation would include the provision of maximum periods of authorized stay with options for extensions for each applicable visa category.

1653-AA81 | This proposed rule would increase student and exchange visitor program (SEVP) fees, making it more expensive for schools to sponsor non-immigrant students.

 

WORK AUTHORIZATION/EADs

1615-AC15 | The Agenda includes measures for the removal of H-4 dependent spouses from the classes of foreign nationals currently eligible for work authorization.  At present, H-4 spouses dependent on H-1B non-immigrant workers who are seeking employment-based legal permanent residence are eligible for work authorization.  DHS seeks to remove the regulations allowing this employment authorization eligibility for certain H-4 dependent spouses.

1615-AC40 | DHS also seeks to eliminate eligibility for employment authorization for certain foreign nationals with final orders of removal that are temporarily released from custody.

 

GENERAL

1651-AB12 | One of the most sweeping changes proposed in the Agenda is the proposal of a rule allowing for the collection of biometrics from certain foreign nationals upon departure (not just under pilot programs and without a port limitation).  This rule would also allow for the potential of all foreign nationals to be required to be photographed upon entry and/or departure from the United States and the expedited completion of a biometric entry-exit tracking system.

1615-AC14 | This proposed rule would allow for the expansion of the current types of biometrics required to establish and verify identity.

1651-AB14 | This proposed rule would extend the use of the Electronic System for Travel Authorization (ESTA) to land ports of entry, which is currently used only when individuals intend to enter the United States from sea or air ports to notify CBP of certain biographical information.

1615-AC46 | DHS intends to propose regulations to include or expand on current agency policies regarding how unlawful presence accrues under the three- and ten-year bars to admissibility in section 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I) of the Immigration and Nationality Act (INA).  DHS also states that it “intends to address” how those subject to inadmissibility under these sections of the INA may be admitted to the country after remaining outside for the required length of time.