USCIS released its regulatory agenda for the coming months, which included plans to publish a final rule that would implement the second phase of the H-1B modernization plan initiated last year, among other immigration agency rulemaking priorities and timelines for the coming months. While the regulatory agenda reveals the Biden Administration’s agency priorities, the normal rulemaking process takes at least several months, and following the administration change on January 20, 2025, federal agencies under the new administration may decline to pursue proposed rules, suspend implementation of newly issued final rules, or even seek to vacate rules. While the implementation and lasting power of rules included in the Biden Administration’s plans are uncertain, some of these plans may remain on course, especially where they align with the incoming administration’s interests.
H-1B Program Modernization
A few days after announcing the regulatory agenda, the second phase of the H-1B modernization final rule was published and will take effect on January 17, 2023. More information about the rule can be found here.
H-1B/L-1 Border Security Fee
U.S. Customs and Border Protection (CBP) is expected to issue a final rule in April 2025 that would impose a $4,000 or $4,500 9-11 Response fee on certain H-1B and L-1 petitions. The fee would apply to employers with more than 50 employees in the U.S., more than 50% of whom are in H-1B or L-1 status. The rule is expected to extend the 9-11 Response fee’s applicability to extensions of stay, in addition to the initial and change of employer petitions it already applies to.
Immigrant Visa Interview Waiver
A final rule that would permit a waiver of the requirement for immigrant visa applicants to appear before a consular officer is expected to be published in December 2024. The eligibility requirements remain unknown.
Public Charge Rule
A proposed rule that would codify current practice with respect to public charge inadmissibility is slated to be issued in February 2025. However, the first Trump Administration applied a much more restrictive approach to public charge inadmissibility and is unlikely to move forward with this proposed rule.
J-1 Program
An interim final rule is expected to be published in February 2025, which would increase the maximum J-1/J-2 health insurance deductible, thus tightening J-1 health insurance requirements. In addition, the regulatory agenda includes a proposed rule that would increase the duration of academic training permitted for certain J-1 exchange visitors in STEM fields. Moreover, in December 2024, DOS issued a revised J-1 Exchange Visitor Skills List, which removed numerous countries including China and India from the prior list, affecting which J-1 exchange visitors are subject to the two-year home residency requirement.
Proposed Revisions to Schedule A
The Department of Labor (DOL) had considered expanding the list of labor-certification exempt occupations (“Schedule A”) to include STEM-related and other occupations with a shortage of U.S. workers, in response to the Biden Administration’s AI Executive Order. This initiative has been shifted to DOL’s long-term agenda, suggesting that it no longer intends to expand the list.
As noted above, implementing a regulation usually requires at least several months. Accordingly, given the upcoming administration change, whether the above changes are actually implemented—or are implemented and then repealed—remains uncertain. We will continue to provide updates as the plans articulated on the regulatory agenda progress.
Please note that the above is for informational purposes only and does not constitute legal advice. For specific questions about how the proposed and final regulations may affect your specific circumstances, please contact your team at D&S.