The Biden administration's latest regulatory plans reveal that it will continue to move on Trump-era proposals to reform the H-1B visa program for professional workers, including raising the wages of those workers.
The administration's 2022 regulatory agenda for its immigration-related agencies outlines projected immigration policy for the first half of next year, including rules impacting the H-1B program, student visas, premium processing and filing fees.
The following brief outlines the regulatory changes the Biden administration is planning for employment visa programs in 2022. Note however that agency agendas feature goals that are often postponed and sometimes never come to fruition.
H-1B Visa Program Reforms
U.S. Citizenship and Immigration Services (USCIS) intends to offer a rule amending aspects of the H-1B visa program first proposed by the Trump administration.
Some modifications from the Trump-era rules are expected in the new proposal scheduled for May 2022.
According to USCIS, the rule will:
- Redefine the H-1B employer-employee relationship.
- Establish new guidelines for employer site visits.
- Clarify rules for F-1 students awaiting a change of status to H-1B.
- Clarify the requirement that an amended or new H-1B visa petition be filed if there are material changes to employment, including a new worksite location.
The Department of Labor (DOL) plans on advancing a new prevailing wage regulation in March, based on the public feedback it received in a request for comments conducted this past spring.
A final rule proposed by the Trump administration raising wages for workers with H-1B visas and employment-based green cards was slated to take effect on Nov. 14, 2022; however, it was vacated by a federal judge in June. The rule was issued in January 2021 as one of the last regulatory actions of the Trump administration.
Another Trump-era proposal reallocating H-1B cap numbers to the highest-paid beneficiaries according to the DOL's wage levels has been withdrawn by the Biden administration, though it is not clear whether the concept is still on the drafting table.
President Biden expressed support for salary-based H-1B visa allocation during the 2020 election campaign.
Business Visa Change
The Department of State plans to eliminate the practice of allowing foreign nationals to enter the U.S. with a B-1 business visa to perform short-term H-1B work. B-1 visas will continue to be issued to foreign nationals seeking to engage in permissible business activities, the department said.
Originally proposed in late 2020 by the Trump administration, the rule is scheduled for publication in January 2022. A more comprehensive overhaul of the B visa program proposed by the Trump administration is not currently being considered.
More Premium Processing
By the end of the year, USCIS is planning to issue a final rule implementing legislation that authorizes the agency to expand premium processing service to additional employment-based immigration applications and petitions. These include Form I-140 petitions for EB-1 multinational managers and executives; applications for employment authorization; and applications to change or extend status for the dependents of H-1B and L-1 workers.
The regulation is currently under review at the White House. The regulation implements congressional legislation from October 2020 that directed the agency to expand premium processing service.
Higher Filing Fees
In January, the Department of State is expected to raise visa application filing fees at consulates, while USCIS plans to increase its petition and application filing fees in March. The higher fees are meant to recover the agency's operating costs.
USCIS projects that its costs of providing immigration services will exceed the funds available to it under its existing fee structure, a common complaint from the agency.
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