The Spring 2021 regulatory agenda was posted on Reginfo.gov on June 14, 2021.
Twice per year, in the Spring and 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 Spring 2021 Unified Agenda of Regulatory and Deregulatory Actions, which was posted on Reginfo.gov on June 14, 2021.
A number of these items have been included in prior regulatory agendas. This 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.
Spring 2021 Highlights:
- Withdrawal of F-1 student-related rulemaking that had appeared in past agendas. The Spring 2021 agenda reflects the withdrawal of the following:
- Proposed rule to eliminate duration of status (D/S)
- Practical Training Reform
- Adjusting Program Fees for the Student and Exchange Visitor Program
- Eligibility Checks of P/DSOs and A/ROs
- "Final-Final" J Subpart A Rule. Continues in active items, with target date moved to 10/00/2021.
- Unlawful presence rulemaking. Withdrawn on 02/26/2021.
- Documentation of Foreign Source Gifts and Contracts. Proposed rule moved to Long-term actions.
Withdrawal of Proposal to Eliminate Duration of Status
Withdrawn. Agency: DHS/ICE. RIN 1653-AA78. Title: Establishing a Fixed Time Period of Admission and an Extension of Stay Procedure for Nonimmigrant Academic Students, Exchange Visitors, and Representatives of Foreign Information Media. Abstract: "DHS intends to withdraw this proposed rule. U.S. Immigration and Customs Enforcement (ICE) originally proposed modifying the period of authorized stay for certain categories of nonimmigrants traveling to the United States by eliminating the availability of "duration of status" and by providing a maximum period of authorized stay with options for extensions for each applicable visa category." On July 6, 2021, DHS officially withdrew the proposed rule. For a summary of the withdrawn proposed rule and further updates, stay tuned to NAFSA's Proposal to Replace Duration of Status page.
F-1 and M-1 Students
Practical Training Reform
Withdrawn. DHS/ICE item RIN 1653-AA76, titled Practical Training Reform, appears in the Spring 2021 agenda under Completed Actions as Withdrawn on March 8, 2021. Abstract: "DHS has determined that the proposed regulation entry should be withdrawn from the Unified Agenda. ICE will evaluate and reconsider any necessary changes to existing regulations and the practical training options available to nonimmigrant students on F and M visas." See NAFSA's Practical Training Reform page for background.
Adjusting Program Fees for the Student and Exchange Visitor Program
Withdrawn. DHS/ICE item RIN 1653-AA81, titled Adjusting Program Fees for the Student and Exchange Visitor Program, appears in the Spring 2021 agenda under Completed Actions as Withdrawn on March 8, 2021. Abstract: "DHS has determined that the proposed regulation entry should be withdrawn from the Unified Agenda. ICE intended to propose a regulation to adjust fees that the Student and Exchange Visitor Program (SEVP) charges individuals and organizations to improve compliance and enforcement related to nonimmigrant students. The SEVP fee schedule was last adjusted in a rule published on May 23, 2019."
Eligibility Checks of P/DSOs and A/ROs
Withdrawn. DHS/ICE item RIN 1653-AA71, titled 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, appears in the Spring 2021 agenda under Completed Actions as Withdrawn on March 8, 2021. Abstract: "DHS has determined that the proposed regulation entry should be withdrawn from the Unified Agenda. 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 non- immigrant students and exchange visitors. ICE originally proposed vetting 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). The Department is reevaluating the need to implement such vetting procedures."
DHS/TSA. RIN 1652-AA35. Rulemaking Stage: Final Rule. Target Date: 03/00/2022. Title: Flight Schools. Abstract: "The Interim Final Rule (IFR) was published and effective on September 20, 2004. The IFR created a new part 1552, Flight Schools, in title 49 of the Code of Federal Regulations (CFR). This IFR applies to flight schools and to individuals who apply for or receive flight training. This regulation requires flight schools to notify TSA when noncitizens, and other individuals designated by TSA, apply for flight training or recurrent training. TSA subsequently issued exemptions and interpretations in response to comments on the IFR, questions raised during operation of the program since 2004, and a notice extending the comment period on May 18, 2018. Based on the comments and questions received, TSA is finalizing the rule with modifications, and considering modifications that would change the frequency of security threat assessments from a high-frequency event-based interval to a time-based interval, clarify the definitions and other provisions of the rule, and enable industry to use TSA-provided electronic recordkeeping systems for all documents required to demonstrate compliance with the rule."
Confucius Institute Reporting by SEVP-Certified Schools
First time published in the Unified Agenda. DHS/USICE. RIN: 1653-AA84. Rulemaking Stage: Long-term Actions. Title: Establishing Requirement for Student and Exchange Visitor Program Certified Schools to Disclose Agreements with Confucius Institutes and Classrooms. Abstract: "The U.S. Department of Homeland Security (DHS) originally proposed requiring Student and Exchange Visitor Program (SEVP)-certified schools at all education levels to disclose contractual agreements, partnerships with, financial transactions involving, or any other affiliation with Confucius Institutes and Classrooms or any other cultural institute directly or indirectly funded by the Government of the People's Republic of China. DHS is evaluating the need for such requirements."
J Exchange Visitors
Exchange Visitor Rules: Sanctions
First time published in the Unified Agenda. DOS. RIN: 1400-AF22. Rulemaking Stage: Proposed Rule. Target Date: 09/01/2021. Title: Exchange Visitor Rules: Sanctions. Abstract: "The rule outlines when the Department may impose sanctions against a sponsor (22 CFR 62.50, Subpart D)."
Exchange Visitor Rules: Records
First time published in the Unified Agenda. DOS. RIN: 1400-AF23. Rulemaking Stage: Proposed Rule. Target Date: 09/01/2021. Title: Exchange Visitor Rules: Records. Abstract: "The rule outlines circumstances under which the exchange visitor's record may be changed (22 CFR 62.46, Subpart C)."
"Final-Final" Subpart A
DOS. RIN: 1400-AC36. Rulemaking Stage: Final Rule. Target Date: 10/00/2021. Title: Exchange Visitor Program-General Provisions. Abstract: "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." Has been on DOS regulatory agenda since Fall 2018. See NAFSA's J Subpart A Rule Resource Page for background on the January 5, 2015 Subpart A rule.
Updating DOS Automatic Revalidation Rule to Reference DS-2019 Instead of IAP-66
DOS. RIN: 1400-AE82. Rulemaking Stage: Final Rule. Target Date: 01/00/2022. Title: Visas: Documentation of Nonimmigrants Under the Immigration and Nationality Act, as Amended. Abstract: "The Department of State intends to make technical updates to its regulations at 22 CFR 41.112 to replace an outdated reference to IAP-66, Certificate of Eligibility for Exchange Visitor Status, with the updated form name of the DS-2019, Certificate of Eligibility for Exchange Visitor (J-1) Status." This would update the DOS automatic revalidation rule at 22 CFR 41.112(d)(2)(i).
Interns and Trainees
DOS. RIN: 1400-AE34. Rulemaking Stage: Proposed Rule. Target Date: 12/00/2021. Title: Exchange Visitors: Interns and Trainees. Abstract: "This proposed rule will update the Department's rules regarding the intern and trainee portion of the Exchange Visitor Program, in accordance with the Fulbright-Hays Act, and to better align the program with the public diplomacy purposes of the Act and the Exchange Visitor Program."
Au Pair Educational Component
DOS. RIN 1400-AC82. Rulemaking Stage: Proposed Rule. Target Date: 11/00/2021. Title: Exchange Visitor Program-Au Pairs. Abstract: "The Department is proposing to amend existing Exchange Visitor Program regulations to provide more flexibility for au pairs to meet the required educational component of their exchange programs. This proposed rule will also consider increasing the limit on the amount of the contribution that host families must provide au pairs toward the cost of completing the required educational component and expanding the options available to au pairs to meet this requirement. In addition to the proposed changes in the educational component, the Department is proposing language that clarifies the intent of some existing regulatory requirements, and requires the development of organizational specific statements of policy."
Au Pair Structure
DOS. RIN: 1400-AF12. Rulemaking Stage: Proposed Rule. Target Date: 12/00/2021. Title: Exchange Visitor Program-Au Pair. Abstract: "The Department proposes to clarify the regulatory structure of the Au pair category."
Alien Physician Category - Change in Certification Authority
An April 19, 2021 Department of State final rule [86 FR 20286] effective May 18, 2021 changed certification authority for alien physicians from the "American Board of Medical Specialties (ABMS)" to the "Accreditation Council for Graduate Medical Education (ACGME)." This updated DOS regulations at 22 CFR 62.27(e).
Employment-Based Nonimmigrants and Immigrants
DOL Prevailing Wage Rulemaking
DOL/ETA. RIN: 1205-AC00. Rulemaking Stage: Proposed Rule. Target Date: 11/00/2021. Title: Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States. Abstract: "This rule amends the regulations at 20 CFR parts 655 and 656 to establish a new wage methodology for setting prevailing wage levels for the H-1B/H-1B1/E-3 and PERM programs consistent with the requirements of the Immigration and Nationality Act." See NAFSA's page on OES-Based Prevailing Wage Determinations for background.
Updating NAFTA Regulations to Reflect USMCA
DHS/USCBP. RIN: 1651-AB42. Rulemaking Stage: Interim Final Rule. Target Date: 11/00/2021. Title: Temporary Entry of Business Persons Under the Agreement Between the United States of America, the United Mexican States, and Canada (USMCA). Abstract: "The Agreement Between the United States of America, the United Mexican States, and Canada (USMCA) superseded the North American Free Trade Agreement (NAFTA) and its related provisions on the USMCA's entry into force date. This document amends Department of Homeland Security (DHS) regulations relating to the temporary entry of Canadian and Mexican citizen business persons into the United States by replacing references to NAFTA with USMCA. This rule also makes minor, non-substantive stylistic changes."
Modernizing H-1B Requirements and Oversight and Providing Flexibility in the F-1 Program
First time published in the Unified Agenda. DHS/USCIS. RIN: 1615-AC70. First time published, in the Spring 2021 regulatory agenda. Rulemaking Stage: Proposed Rule. Target Date: 12/00/2021. Title: Modernizing H-1B Requirements and Oversight and Providing Flexibility in the F-1 Program. Abstract: "The Department of Homeland Security (DHS) is proposing to amend its regulations governing H-1B specialty occupation workers and F-1 students who are the beneficiaries of timely filed H-1B cap-subject petitions. Specifically, DHS proposes to revise the regulations relating to "employer-employee relationship;" implement new requirements and guidelines for site visits including in connection with petitions filed by H-1B dependent employers and H-1B petitions, where there is indicia of fraud; provide flexibility on the employment start date listed on the petition (in limited circumstances); address "cap-gap" issues; and clarify the requirement that an amended or new petition be filed where there are material changes, including by streamlining notification requirements relating to certain worksite changes, among other provisions."
Modification of Registration Requirement for Petitioners Seeking To File Cap-Subject H-1B Petitions
DHS/USCIS. RIN: 1615-AC61. Rulemaking Stage: Long-term Actions. Title: Modification of Registration Requirement for Petitioners Seeking To File Cap-Subject H-1B Petitions. Abstract: "On January 8, 2021, DHS published a final rule, Modification of Registration Requirement for Petitioners Seeking To File Cap-Subject H-1B Petitions (H-1B Selection Final Rule) amending regulations governing the process by which U.S. Citizenship and Immigration Services (USCIS) selects H-1B registrations for the filing of H-1B cap-subject petitions (or H-1B petitions for any year in which the registration requirement is suspended), by generally first selecting registrations based on the highest Occupational Employment Statistics (OES) prevailing wage level that the proffered wage equals or exceeds for the relevant Standard Occupational Classification (SOC) code and area(s) of intended employment. The Department is delaying the rule's effective date until December 31, 2021, because USCIS will not have adequate time to complete system development, thoroughly test the modifications, train staff, and conduct public outreach needed to ensure an effective and orderly implementation of the H-1B Selection Final Rule by the time the initial registration period will be open for the upcoming fiscal year (FY) 2022 H-1B cap season. During the delay, while USCIS works through the issues associated with implementation, DHS leadership will also evaluate the January 8th rule and its associated policies, as is typical of agencies at the beginning of a new Administration." See NAFSA's page for background and future updates.
Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization
Withdrawn. DHS/USCIS item RIN 1615-AC15, titled Removing H-4 Dependent Spouses From the Classes of Aliens Eligible for Employment Authorization, does not appear in the Spring 2021 regulatory agenda. It was withdrawn on January 25, 2021 pursuant to the January 20, 2021 Biden Administration Regulatory Freeze Memorandum.
ESTA Implementation at Land Borders
DHS/USCBP. RIN: 1651-AB14. Rulemaking Stage: Interim Final Rule. Target Date: 07/00/2021. Title: Implementation of the Electronic System for Travel Authorization (ESTA) at U.S. Land Borders. Abstract: "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 noncitizens who intend to enter the United States under the Visa Waiver Program (VWP) at land ports of entry. Currently, noncitizens 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 noncitizens who intend to enter the United States under the VWP at air or sea ports of entry." Note: DHS first introduced this interim final rule in its Fall 2018 regulatory agenda. On December 5, 2019, DHS submitted the rule to OMB for review, but DHS then withdrew the rule on 11/10/2020. In the Spring 2021 DHS Regulatory Agenda, however, the rule is back on its rule making agenda as an interim final rule with a target action date of 07/00/2021. It has not yet been resubmitted to OMB for review, though.
DOS Plan to Eliminate "B-1 in Lieu of H" Policy
DOS. RIN: 1400-AE95. Rulemaking Stage: Final Rule. Target Date: 01/00/2022. Title: Visas: Temporary Visitors for Business or Pleasure. Abstract: "The Department proposes to eliminate two sentences from its regulation governing nonimmigrant visitors for business, 22 CFR 41.31(b)(1). The current regulation states that an alien seeking to enter for employment or labor pursuant to a contract or other prearrangement is required to qualify under the regulation governing H nonimmigrant temporary workers or trainees. The Department proposes to remove this language because the regulation states explicitly that permitted use of a B visa does not include local employment or labor for hire, so this narrower statement is confusing and potentially misleading. The Department also proposes to eliminate from the current regulation the statement that an alien of distinguished merit and ability seeking to enter the United States temporarily with the idea of performing temporary services of an exceptional nature, requiring such merit and ability, but having no contract or other pre-arranged employment, may be classified as a nonimmigrant temporary visitor for business." Note: DOS had published a proposed rule at 85 FR 66878 (October 21, 2020). Under that proposal, "the Department would no longer authorize issuance of B-1 visas for certain aliens classifiable as H-1B or H-3 nonimmigrants, commonly referred to as the "B-1 in lieu of H" policy, unless the alien independently qualifies for a B-1 visa for a reason other than the B-1 in lieu of H policy." Public comments were due by 12/21/2020.
Nonimmigrant Classes: Temporary Visitors to the United States for Business or Pleasure
Withdrawn. DHS/CBP item RIN 1651-AA99, titled Period of Admission and Extension of Stay for Temporary Visitors to the United States for Business or Pleasure, appears in the Spring 2021 agenda under Completed Actions, as Withdrawn on 03/04/2021. The proposed rulemaking had sought to "clarify the criteria for according B-1 or B-2 nonimmigrant classification to applicants for admission to the United States," and to "modify the period of admission and extensions of stay for such visitors."
Immigrant Visa Personal Appearance Waivers
First time published in the Unified Agenda. DOS. Two items in the Spring 2021 agenda.
- RIN: 1400-AF31. Rulemaking Stage: Final Rule. Target Date: 09/00/2021. Title: Visas: Documentation of Immigrants under the Immigration and Nationality Act, as Amended; Personal Appearance Waiver for Immigrant Visa Applicants. Abstract: "The Department intends to review the Department's regulations in 22 CFR part 42 to add a limited exception to the general requirement that an immigrant visa applicant appear in person before a consular officer and provide an in-person oath."
- RIN: 1400-AF20. Rulemaking Stage: Temporary Final Rule. Target Date: 09/00/2021. Title: Waiver of Personal Appearance and In-Person Oath Requirement for Certain Immigrant Visa Applicants Due to COVID-19. Abstract: "This temporary final rule (TFR) provides flexibility for consular officers to waive the personal appearance of certain repeat immigrant visa applicants who were approved for an immigrant visa in the same classification and on the same basis as the current application on or after September 1, 2019. It also gives consular officers discretion to allow this subset of immigrant visa applicants to subscribe to the accuracy of the contents of their application under oath in writing rather than in person before a consular officer. This TFR is effective during the period while the COVID-19 outbreak is declared a National Emergency and expires 180 days after its termination."
DOS Withdraws Proposal to "Ensure More Rigorous Implementation" of B Visitor Category
Withdrawn. DOS item RIN: 1400-AE79, titled Visas: Documentation of Nonimmigrants Under the Immigration and Nationality Act, as Amended, appears in the Spring 2021 agenda under Completed Actions, as Withdrawn on 03/10/2021. Abstract: "This notice of proposed rulemaking would have amended regulations at 22 CFR 41.31 to ensure a more rigorous implementation of INA 101(a)(15)(B), consolidate in a regulation standards set out in current Department guidance, and improve the clarity and transparency of the Department's B visa-related standards. In some respects, this rule would have changed policies. The Department has withdrawn the rule associated with this RIN."
Period of Admission and Extension Stay for Temporary Visitors to the United States for Business or Pleasure
Withdrawn. DHS/CBP item RIN: 1651-AA99, titled Period of Admission and Extension of Stay for Temporary Visitors to the United States for Business or Pleasure, appears in the Spring 2021 agenda under Completed Actions, as Withdrawn on 03/04/2021. Abstract: "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 would modify the period of admission and extensions of stay for such visitors. DHS has determined that the proposed regulation entry should be withdrawn."
Visas, Entry, Exit, Biometrics
Review of DOS Regulations and Policies Pursuant to Executive Order 14012
First time published in the Unified Agenda. DOS. RIN: 1400-AF30. Rulemaking Stage: Prerule, Request for Comments. Target Date: 06/00/2021. Title: Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans. Abstract: "Consistent with the policies contained in Executive Order 14012, Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans, the Department requests comments identifying barriers that impede access to immigration benefits and fair, efficient adjudications of these benefits; making recommendations on how to remove these barriers, as appropriate and consistent with applicable law; and identifying any agency actions that fail to promote access to the legal immigration system. Comments received through the ANPRM could help crystallize public sentiment regarding perceived barriers." NAFSA note: DOS submitted this for OMB review on 04/08/2021.
- Pursuant to EO 14012, and similar to USCIS's request for information, on September 16, 2021 the Department of State (DOS) published a request for public input on: " (1) Any existing barriers that impede access to, and fair, efficient adjudication of, immigrant visas, and (2) recommendations on actions the Department could take to improve access to adjudication of immigrant visa." Comments are due by October 18, 2021. This request for public input is limited to the immigrant visa process. To read the notice and to find comment instructions, see 86 FR 51643 (September 16, 2021).
Electronic Validation of Travel Documents
First time published in the Unified Agenda. DHS/USCBP. RIN: 1651-AB43. Rulemaking Stage: Proposed Rule. Target Date: 09/00/2021. Title: Advance Passenger Information System: Electronic Validation of Travel Documents. Abstract: "U.S. Customs and Border Protection (CBP) regulations require commercial air carriers to electronically transmit passenger information to CBP's Advance Passenger Information System (APIS) prior to an aircraft's arrival in or departure from the United States. CBP proposes to amend these regulations to incorporate additional carrier requirements that will enable CBP to validate each passenger's travel documents prior to the passenger boarding the aircraft. This proposed rule would also require air carriers to transmit additional data elements through APIS for all commercial aircraft passengers arriving in the United States in order to support border operations and national security. The collection of additional data elements will support the efforts of the Centers for Disease Control, within the Department of Health and Human Services, to monitor and contract-trace health incidents."
Stateside Processing of A, G, NATO Dependent Visas
DOS. RIN: 1400-AE71. Rulemaking Stage: Final Rule. Target Date: 12/00/2021. Title: Visas: Children Born in the United States to A, G, or NATO Visa Holders. Abstract: "The Department publishes a final rule amending 22 CFR 41.111 relating to children born in the United States (but not subject to the jurisdiction of the United States) to qualified aliens who are maintaining status and properly classified as A, G, or NATO nonimmigrants. The amendment will add such children to the scope of individuals who may be issued visas in the United States."
Nonimmigrant Visa Medical Exam
DOS. RIN: 1400-AE47. Rulemaking Stage: Proposed Rule. Target Date: 01/00/2021. Abstract: "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."
Electronic Photographs in Visa Applications
DOS. RIN: 1400-AE81. Rulemaking Stage: Final Rule. Target Date: 12/00/2021. Title: Visas: Documentation in Support of Visa Application. Abstract: "The Department of State intends to update its regulations to clarify that uploading an electronic photograph in support of a visa application and signing and submitting the application online is the equivalent of furnishing a signed photograph in accordance with section 221(b) of the INA."
Collection of Biometric Data From Aliens Upon Entry To and Exit From the United States
DHS/USCBP. RIN: 1651-AB12. Rulemaking Stage: Final Rule. Target Date: 01/00/2022. Title: Collection of Biometric Data From Noncitizens Upon Entry To and Exit From the United States. Abstract: "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 noncitizens entering and departing the United States. Although the current regulations provide that DHS may require certain noncitizens to provide biometrics when entering and departing the United States, they only authorize DHS to collect biometrics from certain noncitizens 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 noncitizens more efficient, accurate, and secure by using facial recognition technology, DHS is amending the regulations to provide that all noncitizens may be required to be photographed upon entry and/or departure."
Collection and Use of Biometrics by U.S. Citizenship and Immigration Services
Withdrawn. DHS/USCIS item RIN 1615-AC14, titled Collection and Use of Biometrics by U.S. Citizenship and Immigration Services, is listed in the Spring 2021 agenda as Withdrawn on 05/10/2021. DHS/USCIS had published this as a proposed rule at 85 FR 56338 (September 11, 2020). DHS submitted a final rule for OMB review on December 15, 2020, and OMB completed its review on January 13, 2021. In Federal Register notice 86 FR 24750 (May 10, 2021): "DHS withdraws the proposed rule as of May 10, 2021."
Fees, Filing, and Processing
U.S. Passport Book Fees
DOS. RIN: 1400-AE15. Regulatory Stage: Final Rule. Target Date: 06/00/2021. Title: Schedule of Fees for Consular Services. Abstract: "The Department of State amends the Schedule of Fees for Consular Services for passport books. 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." Note: DOS published a proposed rule at 86 FR 16149 (March 26, 2021).
Visa Security Program Fee
DHS/ICE. RIN 1653-AA77. Regulatory Stage: Proposed Rule. Target Date: 01/00/2022. Title: Visa Security Program Fee. Abstract: "ICE seeks to enable the expansion of the Visa Security Program (VSP) by proposing to move it to a user-fee funded model (as opposed to relying on appropriations). The VSP leverages resources in the National Capital Region (NCR) and at U.S. diplomatic posts overseas to vet and screen visa applicants; identifies and prevents the travel of those who constitute potential national security and/or public safety threats; and launches investigations into criminal and/or terrorist affiliated networks operating in the U.S. and abroad. The fees collected as a result of this rule would fund an expansion of the VSP, enabling ICE to extend visa security screening and vetting operations and investigative efforts to more visa-issuing posts overseas, and in turn, enhance the U.S. government's ability to prevent travel to the United States by illicit actors." Statement of Need: "Collecting a Visa Security User Fee from all non-exempt non-immigrant visa applicants at the time of application submission will shift the Visa Security Program from a Congressionally-appropriated funding stream to a fee funded structure. This change will strengthen national security, help to facilitate long-term budget planning, and shift the burden of funding the program away from the U.S. taxpayers."
USCIS Filing Fees
DHS/USCIS. RIN: 1615-AC68. Rulemaking Stage: Proposed Rule. Title: U.S. Citizenship and Immigration Services Fee Schedule. Abstract: "DHS will propose to adjust the fees charged by U.S. Citizenship and Immigration Services (USCIS) for immigration and naturalization benefit requests. On August 3, 2020, DHS adjusted the fees USCIS charges for immigration and naturalization benefit requests, imposed new fees, revised certain fee waiver and exemption policies, and changed certain application requirements via the rule "USCIS Fee Schedule & Changes to Certain Other Immigration Benefit Request Requirements." DHS has been preliminarily enjoined from implementing that rule by court order. This rule would rescind and replace the changes made by the August 3, 2020, rule and establish new USCIS fees to recover USCIS operating costs." See NAFSA's page for background on the enjoined USCIS fee rule.
USCIS Premium Processing
First time published in the Unified Agenda. DHS/USCIS. RIN: 1615-AC73. Rulemaking Stage: Final Action. Target Date: 09/00/2021. Title: Adjustment to Premium Processing. Abstract: "The Continuing Appropriations Act, 2021 and Other Extensions Act, signed into law on Oct. 1, 2020, contained the Emergency Stopgap USCIS Stabilization Act which set new fees for benefit requests currently eligible for premium processing and expanded USCIS authority to establish and collect additional premium processing fees and to use those additional funds for expanded purposes. Through this rulemaking, DHS will set those fees established by statute at 8 U.S.C. 1356(u)(3)(A) and establish new benefit requests eligible for premium processing and the associated fees made available by 8 U.S.C. 1356(u)(3)(B), but limited to those conditions and eligibility requirements set forth by Section 4102(b)(1) of the Emergency Stopgap USCIS Stabilization Act, Pub. L. No. 116-159, (2020)." See NAFSA's Emergency Stopgap USCIS Stabilization Act Authorizes Expanded Premium Processing page for background and updates.
Updating Adjustment of Status Procedures for More Efficient Processing and Immigrant Visa Usage
DHS/USCIS RIN: 1615-AC22. Rulemaking Stage: Long-term Actions. Title: Updating Adjustment of Status Procedures for More Efficient Processing and Immigrant Visa Usage. Abstract: "The Department of Homeland Security (DHS) will propose regulatory provisions designed to: improve the efficiency in the processing of Application to Register Permanent Residence or Adjust Status (Form I-485), reduce processing times, improve the quality of inventory data provided to partner agencies, reduce the potential for visa retrogression, promote efficient usage of available immigrant visas, and discourage fraudulent or frivolous filings." Target date history in prior agendas: Fall 2020: 09/00/2021. Spring 2020: Long-term Actions. Fall 2019: 04/00/2020. Spring 2019: 09/00/2019.
Implementing a Known Employer Program for Certain Employment-Based Nonimmigrant and Immigrant Visa Classification
Long-Term Action at the proposed rule stage, no target date specified. First published in the Spring 2019 regulatory agenda, continued as a long-term action in the Fall 2019 agenda and Spring 2020 agenda. Agency: DHS/USCIS. RIN 1615-AC35. Abstract: "The Department of Homeland Security (DHS) will propose regulations to amend the filing process for certain employers seeking to hire certain workers through employment-based visa categories. Specifically, eligible employers may be able to request that USCIS pre-adjudicate certain eligibility requirements of petitions relating to certain employment-based nonimmigrant and immigrant visa classifications. This change would promote simplicity and efficiency in the benefit application process for employers, while allowing USCIS to further protect benefit integrity and ensure consistency with respect to adjudications. In addition, this initiative would reduce paperwork for all parties. This NPRM would propose to codify the USCIS' Known Employer Pilot Program, which was in effect from March 3, 2016 and through December 31, 2020."
Long-term action at the proposed rule stage. Fall 2020 Agenda Target Date: 12/00/2021. Spring 2020 agenda as a long-term action with a 12/00/2021 target date (it had a target date of 12/00/2019 in the Fall and Spring 2019 agendas, and 04/00/2019 in the Fall 2018 agenda). Agency: DHS/USCIS. RIN 1615-AB98. Title: Requirements for Filing Motions and Administrative Appeals. 2019 Abstract: "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." 2020 Abstract: "The Department of Homeland Security (DHS) is proposing this rule to improve the administration of U.S. Citizenship and Immigration Services (USCIS) appeals, motions, and certifications. The proposed changes would update and restructure the regulations in order to clarify and streamline the administrative review process, increase efficiency, and reflect the establishment of DHS and its components."
Public Charge Other Cross-Category Topics
Inadmissibility on Public Charge Grounds (USCIS)
First time published in the Unified Agenda. DHS/USCIS RIN: 1615-AC74. Rulemaking Stage: Advanced Notice of Proposed Rulemaking. Target Date: 08/00/2021. Title: Inadmissibility on Public Charge Grounds. Abstract: "Section 4 of Executive Order 14012 of February 2, 2021 (86 FR 8277) directed DHS and other federal agencies to immediately review agency actions related to the public charge grounds of inadmissibility and deportability for noncitizens at sections 212(a)(4) and 237(a)(5) of the Immigration and Nationality Act (INA) (8 U.S.C. 1182(a)(4), 1227(a)(5)). DHS intends to proceed with rulemaking to define the term public charge and identify considerations relevant to the public charge inadmissibility determination. DHS will conduct the rulemaking consistent with section 212(a)(4) of the INA and consistent with the principles described in Executive Order 14012. Such principles include recognizing our character as a Nation of opportunity and of welcome and of providing due consideration to the confusion, fear, and negative public health consequences that may result from public charge policies. Consistent with section 6 of Executive Order 12866 (58 FR 51735) and section 2 of Executive Order 13563 (76 FR 3821), and in consideration of the significant public interest in this rulemaking proceeding, DHS intends to publish an advance notice of proposed rulemaking and engage relevant stakeholders."
- DHS submitted this prerule item to OMB for review on 07/27/2021.
Ineligibility Based on Public Charge Grounds (DOS)
DOS. RIN: 1400-AE87. Rulemaking Stage: Final Rule. Target Date: 09/00/2021. Title: Visas: Ineligibility Based on Public Charge Grounds. Abstract: "The Department's 2019 IFR has not yet been finalized. Given the many changed circumstances since the IFR was published, the Department intends to solicit information from the public prior to finalizing this rule. Since the 2019 IFR is based on a rule that is no longer the policy of the Department of Homeland Security, the Department intends to publish a notice in the Federal Register to solicit further comments on whether the 2019 IFR should be rescinded or revised and what final rule should be adopted, if any. Rulemaking on this topic is a priority for the Department."
DOJ: Inadmissibility and Deportability on Public Charge Grounds
Withdrawn. DOJ. RIN: 1125-AA84. Title: Inadmissibility and Deportability on Public Charge Grounds. Abstract: "The Department of Justice (DOJ) had planned to issue a proposed rule to change how adjudicators within the Executive Office for Immigration Review (EOIR) determine whether a noncitizen is inadmissible to the United States as a public charge consistent with section 212(a)(4) of the Immigration and Nationality Act (INA) or deportable on account of having become a public charge consistent with section 237(a)(5) of the INA. The proposal, which was intended to make certain revisions to more closely conform EOIR's regulations with the August 2019 Department of Homeland Security (DHS) public charge rule (RIN 1615-AA22) was never published. The August 2019 DHS rule was vacated by a Federal district court. On March 15, 2021, DHS issued a final rule to implement the court's vacatur of the prior final rule and restore the regulatory text in the Code of Federal Regulations to appear as it did prior to the issuance of the August 2019 rule. The Department is withdrawing this RIN from the Unified Agenda." Also see NAFSA's page discussing the DHS public charge rule.
Unlawful Presence Rulemaking Withdrawn
Withdrawn. DHS/USCIS item RIN: 1615-AC46 appears in the Spring 2021 regulatory agenda as Withdrawn on 02/26/2021. The item was titled Enhancing the Integrity of the Unlawful Presence Inadmissibility Provisions (RIN 1615-AC46). It had appeared in the Fall 2020 (Long-term Actions), Spring 2020, and Fall 2019 agendas. Abstract: "The three- and ten-year bars to admissibility of section 212(a)(9)(B)(i) of the Immigration and Nationality Act (the Act) and the permanent bar to admissibility of section 212(a)(9)(C)(i)(I) of the Act were added by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (Div. C of Pub. L. 104-208 (September 30, 1996) (IIRIRA)). The amendments enacting sections 212(a)(9)(B) and (C) became effective on April 1, 1997. To date, DHS has not implemented regulations describing how unlawful presence accrues for the purposes of 212(a)(9)(B)(i) and (C)(i)(I). DHS intended to propose regulations to this effect. Further, DHS intended to address how noncitizens subject to inadmissibility under 212(a)(9)(B)(i) and (C)(i)(I) may be admitted to the United States after remaining outside the United States for the required period of time. DHS has determined that the proposed regulation should be withdrawn."
Delay of REAL ID Requirements
First time published in the Unified Agenda. DHS/OS RIN: 1601-AB03. Spring 2021 agenda. Title: Minimum Standards for Driver's Licenses and Identification Cards Acceptable by Federal Agencies for Official Purposes. Abstract: "This rule delays the date for card-based enforcement of the REAL ID regulations from October 1, 2021 until May 3, 2023. Beginning on that date, Federal agencies may not accept a State-issued driver's license or identification card for official purposes from any individual unless such license or card is a REAL ID compliant driver's license or identification card issued by a State that DHS has determined is in full compliance as defined under this part. The regulations also permit Federal agencies to accept for official purposes non-compliant driver's licenses and identification cards until September 30, 2021. This rule also extends that date, authorizing Federal agencies to continue to accept non-compliant driver's licenses and identification cards until the end of May 2, 2023." NAFSA note: The original REAL ID deadline was May 11, 2008. It was later extended various times, most recently until May 3, 2021 by an interim final rule published at 86 FR 23237 (May 3, 2021). Licenses issued by a state that is not certified to be in compliance with REAL ID can no longer be used for the three federal purposes described in the rule, starting on May 3, 2023.
First time published in the Unified Agenda. DHS/USCIS RIN: 1615-AC64. Rulemaking Stage: Proposed Rule. Spring 2021. Title: Preserving and Fortifying Deferred Action for Childhood Arrivals. Abstract: "On June 15, 2012, DHS established the Deferred Action for Childhood Arrivals (DACA) policy. The policy directed USCIS to create a process under which DHS exercises prosecutorial discretion, on an individual case-by-case basis, by deferring action against certain individuals who came to the U.S. as children, met other guidelines, and warranted a favorable exercise of discretion. On January 20, 2021, President Biden signed a Presidential Memorandum, Preserving and Fortifying Deferred Action for Childhood Arrivals (DACA), requiring DHS, in consultation with the Attorney General, to take all appropriate action to preserve and fortify DACA, consistent with applicable law. Consistent with the Presidential Memorandum, DHS intends to engage in notice-and-comment rulemaking to preserve and fortify DACA." OMB completed its review of this proposed rule on 09/17/2021.
Department of Education
Documentation of Foreign Source Gifts and Contracts
DoEd. RIN: 1840-AD50. Moved to Long-term Actions in the Spring 2021 agenda. Title: Documentation of Foreign Source Gifts and Contracts. Abstract: "The Department plans to propose regulations covering institutions' reporting of statutorily defined gifts, contracts, and/or restricted and conditional gifts or contracts from or with defined foreign sources, pursuant to the requirements of Section 117 of the Higher Education Act of 1965." Note: the Fall 2020 agenda abstract at the proposed rule stage read: "The Department proposes a regulation requiring submission of true copies of original agreements memorializing statutorily defined gifts, contracts, and/or restricted and conditional gifts or contracts from or with defined foreign sources by institutions, the value of which gifts or contracts is $250,000 or more (considered alone or in combination with other gifts from or contracts with that foreign source to the institution within a calendar year). The proposed regulation would make the submission of these true copies part of institutions' semiannual disclosure reports filed with the Secretary of Education, pursuant to the requirements of Section 117 of the Higher Education Act of 1965 (HEA), as amended. This proposed regulation is necessitated by the ongoing failure of many institutions to comply with the statutory mandate that institutions accurately and fully report covered gifts and contracts from foreign sources in a timely manner. Departmental and other investigations have uncovered persistent underreporting by institutions of statutorily defined gifts, contracts, and/or restricted and conditional gifts or contracts from or with statutorily defined foreign sources." See NAFSA's resource page on this topic.
Proposal to Revise FERPA Regulations
DoEd. RIN: 1875-AA15. Rulemaking Stage: Proposed Rule. Target Date: 09/00/2021. Title: Family Educational Rights and Privacy Act. Abstract: "The Department plans to propose to amend the Family Educational Rights and Privacy (FERPA) regulations, 34 CFR part 99, to update, clarify, and improve the current regulations by addressing outstanding policy issues, such as clarifying the definition of "education records" and clarifying provisions regarding disclosures to comply with a judicial order or subpoena. The proposed regulations are also needed to implement statutory amendments to FERPA contained in the Uninterrupted Scholars Act of 2013 and the Healthy, Hunger-Free Kids Act of 2010, to reflect a change in the name of the office designated to administer FERPA, and to make changes related to the enforcement responsibilities of the office concerning FERPA."
- 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." These ideas are then communicated more fully in Executive Order 13891 and OMB Guidance M-20-02.
- "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."
- Reginfo.gov describes Long-Term Actions: "Long-Term Actions are items under development but for which the agency does not expect to have a regulatory action within the 12 months after publication of this edition of the Unified Agenda."
- Reginfo.gov also describes what "RIN" stands for: "Every entry appearing in the Unified Agenda or Regulatory Plan is assigned a Regulation Identifier Number (RIN), in accordance with the requirements for the Unified Agenda set forth in section 4 of Executive Order 12866."