Biden Administration Working to Modernize H1B

As recently published in the Spring 2024 Rulemaking Agenda, the Biden Administration aims to publish regulations for the H-1B visa modernization, Adjustment of Status Application, and Seasonal/Temporary Worker Regulations by the end of 2024. The next step toward Annex A reform will come in August of this year.

• H-1B Modernization: The Department of Homeland Security has proposed changing the regulations governing H-1B skilled trades and certain F-1 students. DHS accepted comments on its broad proposed rule until December 22, 2023, and finalized and implemented the H-1B registration choice regulations in April 2024. The agency says it “continues to consider the suggestions in the public comments received as they relate to other proposed regulations discussed in the October 23, 2023 NPRM and intends to finalize the remaining regulations in one or more actions.”
• Permanent legal residence (application for change of status): To reduce processing times, improve agency partnerships, and promote efficiency in visa availability, DHS plans to amend the regulations governing adjustment of status to lawful permanent residence in the U.S., including allowing the visa petition and AOS application for the fourth employment-based preference category to be filed simultaneously. The target date for publication of the proposal is currently August 2024. Publication will be followed by a public comment period.
• To plan: The Department of Labor is considering updating Appendix A and opened a request for information period on December 21, 2023, which has been extended through May 13, 2024. During this period, the public provided input on whether Appendix A was an effective tool to address current labor shortages and how the DOL could create a timely, consistent, and transparent methodology for identifying science, technology, engineering, and mathematics (STEM) and other occupations with labor shortages while ensuring that the employment of foreign nationals does not displace U.S. workers or adversely affect their wages and working conditions. Consistent with its rulemaking plan, the DOL expects to complete its comment review in August 2024.
• H-2 Modernization: DHS released a proposal to modernize the H-2 programs on Sept. 20, 2023, aimed at reducing inefficiencies, increasing payroll protections, and addressing “aspects of the program that may inadvertently result in the exploitation or other abuse of individuals seeking to come to this country as H-2A and H-2B workers.” Comments were accepted through November 2023, with final action scheduled for November 2024.
• Nonimmigrant Workers: DHS plans to propose amendments to the regulations governing certain nonimmigrant workers, including updating employment authorization rules for dependent spouses of certain nonimmigrants; increasing flexibility for certain nonimmigrant workers; and modernizing policies and procedures for employment authorization documents. The expected publication date is January 2025.
• Reforms for immigrant workers: DHS also plans to propose changes to the regulations governing employment-based immigration petitions for first, second, and third preference classifications. According to the regulatory plan, the proposed rule changes would include updating and modernizing the regulations governing extraordinary ability and distinguished professors and researchers; clarifying the evidentiary requirements for first preference classifications, second preference waiver classifications, and nationally and internationally recognized physicians; ensuring the integrity of the I-140 program; and correcting errors and omissions. The proposed rule is currently scheduled for publication in June 2025.

BAL Analysis: While these regulations would have a significant impact on immigration programs, they are at various stages of the rulemaking process, and rules are still being formulated. The proposed regulations are subject to a public notice and comment period during which members of the public can submit feedback. BAL continues to monitor progress on the regulatory agenda and will provide clients with updates on individual regulations as they move through the rulemaking process.