Compilation of Agency Initiatives from the Unified Agenda of Regulatory and Deregulatory Actions

April 25, 2019

 

On October 17, 2018, the Administration published the Fall 2018 regulatory agenda. On February 7, 2019, OMB made a call for agencies to submit data by March 6, 2019 for the Spring 2019 regulatory agenda. Publication of the Spring 2019 agenda is expected by mid-May, 2019. Stay tuned to this page for updates!


Twice per year, in the Spring and the Fall, all agencies must prepare a regulatory agenda that lists each regulatory action the agency expects to work on within the next 12 months. The agencies' regulatory agendas are then published in the Unified Agenda of Regulatory and Deregulatory Actions.

This NAFSA compilation is from the Fall 2018 Unified Agenda of Regulatory and Deregulatory Actions, which was published on October 17, 2018. NAFSA first reported on many of the same changes, which had been included in the Fall 2017 and Spring 2018 regulatory agendas. The compilation includes immigration-related regulatory actions most relevant to institutions that invite international students and scholars to the United States. Refer to the Regulatory Agendas of each agency on Reginfo.gov for the full list of agency regulatory actions. Refer to NAFSA's Basics of Rulemaking Under the APA for background on the rulemaking process, where you will find, for example, an explanation of the difference between a proposed rule and a final rule.

F-1 and M-1 Students

Tinkering with Duration of Status

DHS added the following new item in the Fall 2018 regulatory agenda, at the Proposed Rule Stage with a target date of 09/00/2019:

Establishing a Maximum Period of Authorized Stay for F-1 and Other Nonimmigrants.

U.S. Immigration and Customs Enforcement (ICE) will propose to modify the period of authorized stay for certain categories of nonimmigrants traveling to the United States from "duration of status” (D/S) and to replace such with a maximum period of authorized stay, and options for extensions, for each applicable visa category...

...The failure to provide certain categories of nonimmigrants with specific dates for their authorized periods of stay can cause confusion over how long they may lawfully remain in the United States and has complicated the efforts to reduce overstay rates for nonimmigrant students. The clarity created by date-certain admissions will help reduce the overstay rate...

...ICE is in the process of assessing the costs and benefits that would be incurred by regulated entities and individuals, as well as the costs and benefits to the public at large. ICE, SEVP certified schools, nonimmigrant students, and the employers of nonimmigrant students who participate in practical training would incur costs for increased requirements. This rule is intended to decrease the incidence of nonimmigrant student overstays and improve the integrity of the nonimmigrant student visa.

No further details are available at this time. Because the item broadly refers to "F-1 and Other Nonimmigrants," it may include J exchange visitors and I journalists too, who are also admitted for D/S. So are A diplomats and G international organization employees, but it may be less likely that the proposal would cover A and G nonimmigrants given their diplomatic or quasi-diplomatic nature. NAFSA is planning to challenge the proposal.

Practical Training Reform

Long-Term Action. Practical training reform appeared in the Spring 2018 regulatory agenda with a planned proposed rule date of 10/00/2018. The Fall 2018 agenda moves this action to Long-Term Actions with no projected date.

  • The Spring 2018 agenda described a planned proposed rule this way: "ICE will prepare this rule to improve protections of U.S. workers who may be negatively impacted by employment of nonimmigrant students on F and M visas. The rule would implement new requirements that would reduce fraud and abuse in the practical training programs. The proposed provisions include increased oversight of the schools and students participating in the program to ensure compliance with requirements of the program."
  • The Fall 2018 agenda now describes the long-term action this way: "ICE will propose this rule to improve protections of U.S. workers who may be negatively impacted by employment of nonimmigrant students on F and M visas. The rule is a comprehensive reform of practical training options intended to reduce fraud and abuse."

Also see NAFSA's Practical Training Reform page.

Strengthening Oversight of Schools Certified to Enroll F and M Nonimmigrant Students

This item no longer appears either as a current or long-term action in the Fall 2018 agenda. The Spring 2018 agenda had contained this item as a long-term action. “The Department of Homeland Security (DHS) proposes to improve the capability of the Student and Exchange Visitor Program (SEVP) to oversee designated school officials (DSOs) at schools certified to enroll F and M nonimmigrant students. To improve program oversight, DHS plans to institute new eligibility and training requirements for DSOs.”

Eligibility Checks of Nominated and Current Designated School Officials of Schools That Enroll F and M Nonimmigrant Students and of Exchange Visitor Program-Designated Sponsors of J Nonimmigrants

Proposed Rule Stage, 03/00/2019 target date. “ICE’s Student and Exchange Visitor Program (SEVP) protects national security by ensuring that DHS and Department of State (DOS) have essential data related to nonimmigrant students and exchange visitors. ICE proposes to vet all designated school officials (DSOs) and responsible officers (ROs), who ensure that ICE has access to accurate data on covered individuals via the Student and Exchange Visitor Information System (SEVIS). By requiring DSOs and ROs to undergo an eligibility check, the rule would help DHS prevent potential criminal activities or threats to national security that may result from non-compliance by DSOs and SEVP-certified schools, or ROs and Exchange Visitor Program (EVP) sponsors. The rule would also ensure that SEVP has the necessary enforcement and accountability mechanisms built into the SEVIS to safeguard U.S. security interests."

J Exchange Visitors

“Final-Final” Subpart A

Final Rule Stage, 01/00/19 target date. “Exchange Visitor Program--General Provisions. The Department of State is amending the general provisions (subpart A) of the existing Exchange Visitor Program (EVP) regulations. This section of the regulations establishes the procedures for designated program sponsors and addresses overall program administration. The regulations encompass technical changes to the General Provisions and address public diplomacy and foreign policy concerns, including the Department's ability to monitor program sponsors and to ensure the safety and well-being of foreign nationals who come to the United States as program participants. The final rule was effective on January 5, 2015, and this rulemaking incorporates any changes based on the Interim Final Rule's public comments.”

Two-Year Home-Country Physical Presence Requirement

Interim Final Rule Stage. 11/00/2018 target date. "Visas: Two-Year Home-Country Physical Presence Requirement. The Department intends to revise 22 CFR 41.63 to change the standard and procedures for the Waiver Review Division’s consideration of requests for a recommendation on waiver of the "two year home-country physical presence requirement” for certain exchange visitors."

  • The Spring 2018 agenda had included the following item at the Interim Final Rule stage with a 07/00/18 target date. "Two-Year Home-Country Physical Presence Requirement. The Department intends to revise 22 CFR 41.63(b) and (d) creating a presumption against recommending waivers of the INA 212(e) two year home-country presence requirement for no-objection and exceptional hardship cases.”
  • However, this item no longer appears either as a current or long-term action in the Fall 2018 agenda. It may, though, be related to the above item included in the Fall 2018 agenda. There are no further details.

H-1B Specialty Workers

Also see NAFSA's H Nonimmigrant Category Reform page.

Strengthening the H-1B Nonimmigrant Visa Classification Program

Proposed Rule Stage, 01/00/19 target date. “The Department of Homeland Security (DHS) will propose 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. In addition, DHS will propose additional requirements designed to ensure employers pay appropriate wages to H-1B visa holders.”

Registration Requirement for Petitioners Seeking to File H-1B Petitions on Behalf of Aliens Subject to Numerical Limitations

[10/00/2018 target date. Proposed Rule Stage. “The Department of Homeland Security proposes to amend its regulations governing petitions filed on behalf of H-1B beneficiaries who may be counted under section 214(g)(1)(A) of the Immigration and Nationality Act (INA) ("H-1B regular cap") or under section 214(g)(5)(C) of the INA ("H-1B master's cap").  This rule proposes to establish an electronic registration program for petitions subject to numerical limitations for the H-1B nonimmigrant classification. This action is being considered because the demand for H-1B specialty occupation workers by U.S. employers has often exceeded the numerical limitation. This rule is intended to allow U.S. Citizenship and Immigration Services (USCIS) to more efficiently manage the intake and selection process for these H-1B petitions. The Department published a proposed rule on this topic in 2011. The Department intends to publish an additional proposed rule in 2018. The proposal may include a modified selection process, as outlined in section 5(b) of Executive Order 13788, Buy American and Hire American. NAFSA note: Section 5(b) of Executive Order 13788, Buy American Hire American reads: "(b) In order to promote the proper functioning of the H-1B visa program, the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall, as soon as practicable, suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries."]

Update: On January 31, 2019, DHS published this in the Federal Register as a final rule, effective April 1, 2019. 84 FR 888 (January 31, 2019). See NAFSA's page. The rule has two components:

  • Registration procedure
    • DHS suspended implementation of the rule's registration requirement for the FY 2020 cap filing season that began April 1, 2019.
    • This will eventually require petitioners seeking to file H-1B petitions subject to the H-1B cap to first electronically register with USCIS during a designated registration period preceding the cap-filing season.
    • USCIS will select from among the registrations timely received a sufficient number projected as needed to meet the applicable H-1B allocations.
    • Petitions for selected registrations will then have to be filed within a 90-day window.
     
  • Changing the order in which the cap is counted
    • Under prior regulations, USCIS first selected H-1B petitions eligible for the 20,000 numbers reserved for aliens with a U.S. master's degree or higher, and then counted petitions towards the general cap.
    • Now, USCIS will first select registrations (or petitions, if the registration requirement is suspended) submitted on behalf of all beneficiaries, including those eligible for the advanced degree exemption. USCIS will then select from the remaining registrations a sufficient number projected as needed to reach the advanced degree exemption.
    • USCIS believes that "Changing the order in which USCIS counts these separate allocations would likely increase the number of beneficiaries with a master's or higher degree from a U.S. institution of higher education to be selected for further processing under the H-1B allocations."
    • "USCIS will proceed with implementing this change to the cap allocation selection process for the FY 2020 cap season (beginning on April 1, 2019), notwithstanding the delayed implementation of the H-1B registration requirement."
     

Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization

11/00/2018 target date. Proposed Rule Stage. “On February 25, 2015, DHS published a final rule extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status.  DHS is publishing this notice of proposed rulemaking to amend that 2015 final rule.  DHS is proposing to remove from its regulations certain H-4 spouses of H-1B nonimmigrants as a class of aliens eligible for employment authorization."

Update: On February 20, 2019, DHS submitted this proposed rule for OMB review. See NAFSA's Basics of Rulemaking Under the APA page to see where OMB review of a proposed rule fits into the regulatory process.

B-1, B-2, WB, WT Visitors

Clarifying Criteria for B-1 and B-2 Classifications

09/00/2019 target date. Proposed Rule Stage. "Nonimmigrant Classes: Temporary Visitors to the United States for Business or Pleasure. This is a proposal to amend the Department of Homeland Security (DHS) regulations pertaining to nonimmigrants admitted to the United States as temporary visitors for business (B-1) or pleasure (B-2). The proposed amendments will clarify the criteria for according B-1 or B-2 nonimmigrant classification to applicants for admission to the United States. Such clarification is necessary to ensure fair and consistent adjudication and enforcement, as well as to make the criteria more transparent."

A-1, A-2, G-1, G-2, G-3, G-4 Alternative Visa Flexibility

12/00/2018 target date. Final Rule Stage. "Visas: Documentation of Nonimmigrants Under the Immigration and Nationality Act, as Amended. This regulation change allows the Department to authorize an immediate family member of an alien properly classified as an A-1, A-2, G-1, G-2, G-3, or G-4 principal nonimmigrant to obtain a different nonimmigrant visa, maintain current nonimmigrant visa status, or change to a different nonimmigrant visa status without being restricted to the principal’s A-1, A-2, G-1, G-2, G-3, or G-4 nonimmigrant visa category.  Recent cases involving changes of status have led to increased interest in revising the A/G required rule to provide the Department discretion in its application, with the goal of avoiding potential bilateral irritants."

Implementation of the Electronic System for Travel Authorization (ESTA) at U.S. Land Borders--Automation of CBP Form I-94W

12/00/2018 target date. Interim Final Rule Stage. "This rule amends Department of Homeland Security (DHS) regulations to implement the Electronic System for Travel Authorization (ESTA) requirements under section 711 of the Implementing Recommendations of the 9/11 Commission Act of 2007, for aliens who intend to enter the United States under the Visa Waiver Program (VWP) at land ports of entry.  Currently, aliens from VWP countries must provide certain biographic information to U.S. Customs and Border Protection (CBP) officers at land ports of entry on a paper I-94W Nonimmigrant Visa Waiver Arrival/Departure Record (Form I-94W).  Under this rule, these VWP travelers will instead provide this information to CBP electronically through ESTA prior to application for admission to the United States. DHS has already implemented the ESTA requirements for aliens who intend to enter the United States under the VWP at air or sea ports of entry."

Visas, Entry, Exit

Visa Refusal Procedures for Aliens from Countries Sanctioned for Denying or Delaying Accepting Their Deported Citizens

[12/00/2018 target date, Final Rule Stage. DOS submitted this rule to OMB for review on 08/22/2018. Visas; Refusal Procedures for Visas. Abstract: "This rule revises the Department’s adjudication procedures to allow for suspension of visa issuance, under section 243(d) of the Immigration and Nationality Act, 8 U.S.C. 1253(d), when a country has been sanctioned for denying or delaying accepting an alien subject to a final order of removal from the United States. This rule also updates Department regulations requiring consular officers to issue or refuse a visa, once the application is fully executed. This change clarifies consular officer authority to suspend issuance, consistent with section 243(d), and promotes consistency in the Department’s immigrant and nonimmigrant refusal regulations and procedures. This rule also removes an obsolete provision from nonimmigrant visa procedures regarding assessment of an alien’s ineligibility before an application has been made."]

Update: On April 22, 2019, DOS published this in the Federal Register as a final rule, effective that same date. 84 FR 16610 (April 22, 2019) revised 22 CFR 41.121(a) to reference discontinuation of nonimmigrant visas under INA 243(d), and added 22 CFR 41.123 to give consular officers direction on scope and procedural aspects. Parallel provisions modify and add sections to 8 CFR Part 42 regarding discontinuation of immigrant visas, at 22 CFR 42.81 and 22 CFR 42.84. According to the preamble of the final rule, these revisions to the regulations clarify under INA 243(d), "the consular officer may discontinue granting (i.e., suspend issuance of) a visa... in the manner described in the two new sections." See NAFSA's page.

Medical Exams for K Nonimmigrants... and Perhaps Others

12/00/2018 target date, Interim Final Rule Stage. "Visas: Nonimmigrant Visa Medical Exam: The Department is revising 22 CFR 41.108 to reflect that all K visa applicants undergo medical examinations. Further amendments would allow State and CDC to identify groups of nonimmigrant visa applicants that require medical examinations via separate public notice."

Employment History for Nonimmigrant Visa Applicants

10/00/18 target date. Proposed Rule Stage. “Department of State proposed to revise 22 CFR 41.105 to clarify that a consular officer may request from a nonimmigrant visa applicant documents related to the applicant's previous employment in the United States.”

Collection of Biometric Data From Aliens Upon Entry To and Exit From the United States

12/00/18 target date. Interim Final Rule Stage. "The Department of Homeland Security (DHS) is required by statute to develop and implement an integrated, automated entry and exit data system to match records, including biographic data and biometrics of aliens entering and departing the United States. In addition, Executive Order 13780, Protecting the Nation from Foreign Terrorist Entry into the United States, published in the Federal Register at 82 FR 13209, states that DHS is to expedite the completion and implementation of a biometric entry-exit tracking system. Although the current regulations provide that DHS may require certain aliens to provide biometrics when entering and departing the United States, they only authorize DHS to collect biometrics from certain aliens upon departure under pilot programs at land ports and at up to 15 airports and seaports. To provide the legal framework for CBP to begin a comprehensive biometric entry-exit system, DHS is amending the regulations to remove the references to pilot programs and the port limitation. In addition, to enable CBP to make the process for verifying the identity of aliens more efficient, accurate, and secure by using facial recognition technology, DHS is amending the regulations to provide that all aliens may be required to be photographed upon entry and/or departure."

Update: On April 23, 2019, CBP sent this interim final rule for OMB review.

Fees and Filing

Adjusting Program Fees for the Student and Exchange Visitor Program

03/00/19 target date. Final Rule Stage. "ICE will publish a final rule to adjust fees that the Student and Exchange Visitor Program (SEVP) charges individuals and organizations. In 2017, SEVP conducted a comprehensive fee study and determined that current fees do not recover the full costs of the services provided. ICE has determined that adjusting fees is necessary to fully recover the increased costs of SEVP operations, program requirements, and to provide the necessary funding to sustain initiatives critical to supporting national security. The final rule will adjust fees for individuals and organizations. The SEVP fee schedule was last adjusted in a rule published on September 26, 2008."

Update: On July 17, 2018, the Department of Homeland Security's Bureau of Immigration and Customs Enforcement (ICE) published a proposed rule to raise the I-901 SEVIS fee paid by F-1 and M-1 students and J-1 exchange visitors, raise the initial school certification fee that SEVP charges new F and M schools, begin charging a site-visit fee for institutions adding new instructional sites to their Form I-17, and add a new $1,250 fee for F and M school recertification (currently there is no fee for F or M school recertification), among other changes. After reviewing public comment on the proposed SEVIS fee rule, ICE forwarded the final rule to OMB for review on March 6, 2019. OMB completed its review on April 23, 2019. The next step is for ICE to publish it in the Federal Register as a final rule with a future effective date. See NAFSA's SEVIS F, M, and J Fee Adjustments page.

Requirements for Filing Motions and Administrative Appeals

04/00/2019 target date. Proposed Rule Stage. "This rule proposes to revise the requirements and procedures for the filing of motions and appeals before the Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS), and its Administrative Appeals Office (AAO). The proposed changes are intended to streamline the existing processes for filing motions and appeals and will reduce delays in the review and appellate process. This rule also proposes additional changes necessitated by the establishment of DHS and its components. The proposed changes are intended to promote simplicity, accessibility, and efficiency in the administration of USCIS appeals and motions. The Department also solicits public comment on proposed changes to the AAO’s appellate jurisdiction."

Consular Fees

12/00/2018 target date. Proposed Rule Stage. "The Department of State amends the Schedule of Fees for Consular Services (Schedule) for certain nonimmigrant visas, certain immigrant visas, special visa services fees, and certain citizenship services fees.  This rule amends the application fees for passport books and cards. The rule also amends the security surcharge for immigrant visa services and the fees for certain immigrant visa services.  Lastly, the rule amends fees for records services and authentications. The Department of State is adjusting the fees in light of the findings of a recent cost of service study to ensure that the fees for consular services better align with the costs of providing those services."

Health Care Workers

Updated English Language Proficiency Requirements for Certain Foreign Health Workers

Long-Term Actions, no target date. Interim Final Rule Stage. “The Department of Homeland Security (DHS) is amending its regulations at 8 CFR 212.15 governing certificates for foreign health care workers to update the English language requirements applicable to certain foreign nationals seeking admission to the United States for the purposes of performing labor as health care workers in one of seven covered non-physician health care professions. The Secretary of Health and Human Services in consultation with the Secretary of Education is tasked with setting standards for the English language requirements for foreign healthcare workers under the authority of section 343 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), 8 U.S.C. 1182(a)(5)(C) and 1182(r), and 8 CFR 212.15(g), including identifying appropriate standardized tests and minimum scores. Updated DHS regulations for English language competency are important for ensuring transparency so that that those seeking to enter the United States as health care workers are competent to communicate with an interdisciplinary team of providers and the patients and families they serve. Consistent with the statute and governing regulations, the Department of Health and Human Services (HHS) has notified DHS of additions and deletions to the approved list of testing agencies, tests and minimum scores. Therefore, this rule updates DHS regulations to reflect updated English language proficiency requirements set by HHS.”

Some Background

  • Executive Order (EO) 13771 ("Reducing Regulation and Controlling Regulatory Costs," January 30, 2017), President Trump directed agencies to eliminate two regulations for each new one and to reduce net regulatory costs to zero in Fiscal Year 2017. Agencies appointed new regulatory reform officers and regulatory reform taskforces to help implement these changes (Executive Order 13777, "Enforcing the Regulatory Reform Agenda," February 24, 2017).
  • From the Introduction to the Fall 2017 Regulatory Plan. “Moreover, the Administration has reinforced the importance of fair notice and due process. In particular, this means agencies should closely examine their use of sub-regulatory actions, such as guidance documents, enforcement manuals, interpretive rules, “FAQs,” and the like. Such documents can serve an important role in explaining existing statutory or regulatory requirements; however, they should not be used to impose new or additional legal obligations or requirements. Accordingly, this Administration has encouraged agencies to take a close look at existing guidance documents to assess whether some of them should be withdrawn or modified, or whether their requirements should go through a process of notice and comment rulemaking. Limiting guidance to its intended purpose of clarifying existing law rather than making new law will provide greater transparency about the regulatory process and ensure that regulated entities and the public have notice and an opportunity to comment on significant changes in regulatory requirements.”
  • "The activities included in individual agency agendas are primarily those currently planned to have an Advance Notice of Proposed Rulemaking (ANPRM), a Notice of Proposed Rulemaking (NPRM), or a Final Rule issued within the next 12 months. However, to keep users better informed of opportunities for participation in the rulemaking process, an agency may list in the "Long-Term Actions" section of its agenda those rules it expects will have the next regulatory action more than 12 months after publication of the agenda. When an agency subsequently schedules a regulatory action on one of these rules within a 12-month timeframe, the item will reappear in the appropriate section of the agency's next agenda."