The Fall 2021 regulatory agenda was posted on Reginfo.gov on December 13, 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 Fall 2021 Unified Agenda of Regulatory and Deregulatory Actions, which was posted on Reginfo.gov on December 13, 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.

Fall 2021 Highlights:

  • In a December 29, 2021 proposed rule, the Department of State (DOS) proposes sharply raising key visa and processing fees. For example, the Machine Readable Visa (MRV) fee for F-1, J-1, and other non-petition-based visas would see a 53% hike, and the MRV fee for petition-based categories such as H-1B and O visas would jump 63%. Also included in the fee hike proposal is a whopping increase of 325% for applications for a waiver of the INA 212(e) two-year home residence requirement that many J-1 exchange visitor participants are subject to. Public comments on the proposal are due by February 28, 2022.
  • DHS plans to publish an Interim Final Rule entitled, "Removal of Obsolete Procedures and Requirements Related to F, M, and J Nonimmigrants"
  • DOS continues to say it will publish a"Final-Final" J-1 Subpart A rule

F-1 and M-1 Students

Removal of Obsolete Procedures and Requirements Related to F, M, and J Nonimmigrants

First time published in the Unified Agenda. DHS/USICE. RIN: 1653-AA87. Rulemaking Stage: Interim Final Rule. Title: Removal of Obsolete Procedures and Requirements Related to F, M, and J Nonimmigrants. Target date: 03/00/2022. Abstract: "This rule would remove unnecessary procedures that govern F, M, and J nonimmigrants since the implementation of SEVIS in 2003. These changes are necessary to alleviate confusion by the public, improve clarity, remove obsolete procedures and requirements used before the implementation of SEVIS or during the transition to SEVIS, and correct outdated terminology. Additionally, some sections will be redesignated to provide a sequential flow of the SEVP regulations."

Update to the Department of Homeland Security STEM Designated Degree Program List

Not included in the Unified Agenda. DHS/USICE. RIN: 1653-ZA23. Rulemaking Stage: Notice. Title: Update to the Department of Homeland Security STEM Designated Degree Program List. ICE submitted this item for EOIRA/OMB review on December 8, 2021, and OMB finished its review on January 10, 2022. No further details are available.

Flight Schools

Continued over from the prior Unified Agenda. 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

Completed Action. Withdrawn on 08/27/2021. DHS/USICE. RIN: 1653-AA84. 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

Removal of Obsolete Procedures and Requirements Related to F, M, and J Nonimmigrants

First time published in the Unified Agenda. DHS/USICE. RIN: 1653-AA87. Rulemaking Stage: Interim Final Rule. Title: Removal of Obsolete Procedures and Requirements Related to F, M, and J Nonimmigrants. Target date: 03/00/2022. Abstract: "This rule would remove unnecessary procedures that govern F, M, and J nonimmigrants since the implementation of SEVIS in 2003. These changes are necessary to alleviate confusion by the public, improve clarity, remove obsolete procedures and requirements used before the implementation of SEVIS or during the transition to SEVIS, and correct outdated terminology. Additionally, some sections will be redesignated to provide a sequential flow of the SEVP regulations."

Exchange Visitor Rules: Sanctions

Completed Action. Final Rule published at 86 FR 50993 (September 14, 2021), effective October 14, 2021. Title: Exchange Visitor Program - Sanctions; Notifications. Abstract: "The U.S. Department of State is amending existing Exchange Visitor Program regulations governing the manner in which the Department may accomplish service of a notice to a sponsor that is the subject of a sanction action, to include electronic mail (e-mail) as an acceptable method of providing written notice."

Continued over from the prior Unified Agenda. Proposed Rule Stage. DOS. RIN: 1400-AF22. Rulemaking Stage: Proposed Rule. Target Date: 02/00/2022. 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

Continued over from the prior Unified Agenda. DOS. RIN: 1400-AF23. Rulemaking Stage: Proposed Rule. Target Date: 01/00/2022. 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

Continued over from the prior Unified Agenda. DOS. RIN: 1400-AC36. Rulemaking Stage: Final Rule. Target Date: 12/00/2021. 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." The "final-final" Subpart A rule has been on DOS regulatory agendas 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

Completed Action. DOS. RIN: 1400-AE82. Rulemaking Stage: Final Rule, published at 86 FR 55692 (October 7, 2021), effective November 8, 2021. 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 revision updates the DOS automatic revalidation rule at 22 CFR 41.112(d)(2)(i), to reference DS-2019 rather than IAP-66.

Interns and Trainees

Continued over from the prior Unified Agenda. DOS. RIN: 1400-AE34. Rulemaking Stage: Proposed Rule. Target Date: 04/00/2022. 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

Completed Action. Withdrawn on 11/08/2021. DOS. RIN 1400-AC82. Title: Exchange Visitor Program-Au Pairs. Spring 2021 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." Fall 2021 Abstract: "This Department proposal to amend existing Exchange Visitor Program regulations in the au pair category is withdrawn, and might be re-submitted at a future date."

Au Pair Structure

Continued over from the prior Unified Agenda. DOS. RIN: 1400-AF12. Rulemaking Stage: Proposed Rule. Target Date: 06/00/2022. Title: Exchange Visitor Program-Au Pair. Abstract: "The Department proposes to clarify the regulatory structure of the Au pair category."

Exchange Visitor Program - Summer Work Travel

Continued over from the prior Unified Agenda. DOS. RIN: 1400-AD14. Rulemaking Stage: Final Rule. Target Date: 03/00/2022. Title: Exchange Visitor Program--Summer Work Travel. Abstract: "The Department of State (Department) published an initial interim final rule (IFR) with request for comment on April 26, 2011 (2011 IFR), to amend the regulatory requirements of the Summer Work Travel category of the Exchange Visitor Program. In a second interim final rule (2012 IFR) published May 11, 2012, the Department expanded upon and provided guidance on additional regulatory changes and bolstered portions of the regulations both to further protect the health, safety, and welfare of Summer Work Travel (SWT) Program participants, and to reinforce the cultural exchange aspects of the SWT Program to promote mutual understanding in accordance with the Mutual Educational and Cultural Exchange Act of 1961. The 2012 IFR further reinforces the cultural exchange aspect of the SWT Program through the addition of a cultural component, and provides additional protection to program participants by describing types of job placements that are appropriate and by expanding the list of jobs prohibited under the SWT Program. The Department has reviewed the comments submitted in response to the 2011 IFR and the 2012 IFR. The Department published an NPRM on January 12, 2017, with 45 days for comment. The NPRM also recognizes comments from the 2012 IFR. The NPRM aims to further protect the health, safety, and welfare of exchange visitors on the SWT Program, amends eligibility requirements for participation in the SWT Program, and places additional restrictions and requirements on sponsors implementing the SWT Program. The Department received 98 comment letters in response to the NPRM; it has analyzed all comments that were submitted. It is completing final rule provisions of the NPRM in response to comments received."

Employment-Based Nonimmigrants and Immigrants

DOL Prevailing Wage Rulemaking

Continued over from the prior Unified Agenda. DOL/ETA. RIN: 1205-AC00. Rulemaking Stage: Proposed Rule. Target Date: 03/00/2022. 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." In a Federal Register notice published at 86 FR 70729 (December 13, 2021), DOL formally withdrew its January 14, 2021 rule: "As of December 13, 2021, the Final Rule published on January 14, 2021, at 86 FR 3608, delayed on March 12, 2021, at 86 FR 13995, and further delayed May 13, 2021, at 86 FR 26164, is withdrawn. The Final Rule published on May 13, 2021, at 86 FR 26164, is also withdrawn." The December 13, 2021 rule also "removes from the CFR the regulatory text that the Department promulgated through the rulemaking in October 2020, and restores the regulatory text to appear as it did before the IFR's effective date." This Unified Agenda item indicates that DOL still plans to engage in rulemaking on this topic. See NAFSA's page on OES-Based Prevailing Wage Determinations for background.

Updating NAFTA Regulations to Reflect USMCA

DHS/USCBP Rulemaking

Continued over from the prior Unified Agenda. DHS/USCBP. RIN: 1651-AB42. Rulemaking Stage: Interim Final Rule. Target Date: 03/00/2022. 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."

DOS Rulemaking

Completed Action. DOS. RIN: 1400-AF34. Final Rule, published at 86 FR 61064 (November 5, 2021), effective December 6, 2021. Final rule preamble description: "The Department is amending 22 CFR 41.12 and 41.59 to remove references to NAFTA and replace them with references to the USMCA, which entered into force on July 1, 2020, and replaced NAFTA."

Modernizing H-1B Requirements and Oversight and Providing Flexibility in the F-1 Program

Continued over from the prior Unified Agenda. DHS/USCIS. RIN: 1615-AC70. Rulemaking Stage: Proposed Rule. Target Date: 05/00/2022. 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

Continued over from the prior Unified Agenda. 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.

DHS Withdraws Plan to Eliminate Work Eligibility for H-4 Dependent Spouses

Completed Action. Withdrawn on 08/25/2021. DHS/USCIS item RIN 1615-AC15, titled Removing H-4 Dependent Spouses From the Classes of Aliens Eligible for Employment Authorization. Abstract: "On February 25, 2015, DHS published a final rule that amended DHS regulations to extend eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrant workers who are seeking employment-based lawful permanent resident (LPR) status. DHS previously indicated that it would propose to rescind or change that final rule. DHS no longer intends to issue such a proposed rule."

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

ESTA Implementation at Land Borders

Continued over from the prior Unified Agenda. DHS/USCBP. RIN: 1651-AB14. Rulemaking Stage: Interim Final Rule. Target Date: 03/00/2022. 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."

DOS Plan to Eliminate "B-1 in Lieu of H" Policy

Continued over from the prior Unified Agenda. 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 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.

Visas, Entry, Exit, Biometrics

Immigrant Visa Personal Appearance Waivers

Two DOS items are carried over to the Fall 2021 agenda from the Spring 2021 agenda:

  1. RIN: 1400-AF31. Rulemaking Stage: Final Rule. Target Date: 12/00/2021. 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."
  2. RIN: 1400-AF20. Rulemaking Stage: Temporary Final Rule. Target Date: 12/00/2021. 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."

Review of DOS Regulations and Policies Pursuant to Executive Order 14012

Completed Action. DOS. RIN: 1400-AF30. Rulemaking Stage: Prerule, Request for Comments. 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." On September 16, 2021 DOS published the request for public input (RFI), asking for information 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 were due by October 18, 2021. This request for public input was limited to the immigrant visa process. To read the notice, see 86 FR 51643 (September 16, 2021).

Electronic Validation of Travel Documents

Continued over from the prior Unified Agenda. DHS/USCBP. RIN: 1651-AB43. Rulemaking Stage: Proposed Rule. Target Date: 03/00/2022. 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

Continued over from the prior Unified Agenda. DOS. RIN: 1400-AE71. Rulemaking Stage: Final Rule. Target Date: 07/00/2022. 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

Continued over from the prior Unified Agenda. DOS. RIN: 1400-AE47. Rulemaking Stage: Proposed Rule. Target Date: 03/00/2022. 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

Continued over from the prior Unified Agenda. 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

Continued over from the prior Unified Agenda. DHS/USCBP. RIN: 1651-AB12. Rulemaking Stage: Final Rule. Target Date: To Be Determined. 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." CBP reopened comment until 03/12/2021 on a proposed rule that had been published at 85 FR 74162 (November 19, 2020). The Fall 2021 agenda lists the expected date for publication of a final rule as "To Be Determined."

Fees, Filing, and Processing

DOS Proposes Sharp Increases to Visa and 212(e) Waiver Fees

DOS. RIN: 1400-AF33. Rulemaking Stage: Proposed Rule. Title: Schedule of Fees for Consular Services - Nonimmigrant and Special Visa Fees. Abstract: "The Department of State proposes adjustments to the Schedule of Fees for Consular Services (Schedule of Fees) of the Bureau of Consular Affairs (CA) for several nonimmigrant visa (NIV) application processing fees, the Border Crossing Card (BCC) for Mexican citizens age 15 and over, and the Waiver of Two Year Residence Requirement fee (J-Waiver fee). The proposed changes are based on the findings of the most recently approved update to the Cost of Service Model (CoSM). The proposed fee increases ensure that the fees for providing these consular services better align with the costs of providing the services."

Update: In a December 29, 2021 proposed rule, the Department of State (DOS) proposes sharply raising key visa and processing fees. For example, the Machine Readable Visa (MRV) fee for F-1, J-1, and other non-petition-based visas would see a 53% hike, and the MRV fee for petition-based categories such as H-1B and O visas would jump 63%. Also included in the fee hike proposal is a whopping increase of 325% for applications for a waiver of the INA 212(e) two-year home residence requirement that many J-1 exchange visitor participants are subject to. Public comments on the proposal are due by February 28, 2022. See NAFSA's page DOS Proposes Sharp Increases to Visa and 212(e) Waiver Fees for links and details.

U.S. Passport Book Fees

Completed Action. DOS. RIN: 1400-AE15. Final Rule effective 12/27/2021. Target Date: 06/00/2021. TitleSchedule of Fees for Consular Services. Final Rule published at 86 FR 16149 (October 28, 2021), effective December 27, 2021. Final rule preamble summary: "This final rule adjusts the Schedule of Fees for Consular Services (Schedule of Fees) by increasing the passport book security surcharge (PSS) from $60 to $80."

Visa Security Program Fee

Completed Action. Withdrawn on 08/27/2021. DHS/ICE. RIN 1653-AA77. Title: Visa Security Program Fee. Abstract: "In a past edition of the Unified Agenda, the U.S. Department of Homeland Security (DHS) discussed a potential rule 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).  DHS does not intend to pursue the rulemaking further at this time."

USCIS Filing Fees

Continued over from the prior Unified Agenda. DHS/USCIS. RIN: 1615-AC68. Rulemaking Stage: Proposed Rule. Target Date: 03/00/2022. 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

Continued over from the prior Unified Agenda. DHS/USCIS. RIN: 1615-AC73. Rulemaking Stage: Final Rule. Target Date: 12/00/2021. Title: Implementation of the Emergency Stopgap USCIS Stabilization Act. 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)." USCIS submitted this final rule for OIRA/OMB review on December 8, 2021. See NAFSA's Emergency Stopgap USCIS Stabilization Act Authorizes Expanded Premium Processing page for background and updates.

9-11 Response & Biometric Entry-Exit Fees for H-1B and L-1 Visas 

First time published in the Unified Agenda. DHS/CBP. RIN: 1651-AB48. Rulemaking Stage: Proposed Rule. Target Date: 05/00/2022. Title: 9-11 Response & Biometric Entry-Exit Fees for H-1B and L-1 Visas. Abstract: "The 9-11 Response and Biometric Entry-Exit Fees for H-1B and L-1 Visas (9-11 Response Fees) are fees paid by certain employers of H-1B and L nonimmigrant workers. To implement Public Law 114-113, DHS proposes to amend and clarify the regulations to specify that the 9-11 Response Fees will apply to all H-1B and L-1 extension petitions in addition to all previously covered H-1B and L-1 petitions." This would appear to require all H-1B and L-1 petitioners filing new petitions to pay the Public Law 114-113 of $4,000 (H-1B) or $4,500 (L-1).

Updating Adjustment of Status Procedures for More Efficient Processing and Immigrant Visa Usage

Continued over from the prior Unified Agenda. 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."

Implementing a Known Employer Program for Certain Employment-Based Nonimmigrant and Immigrant Visa Classification

Continued over from the prior Unified Agenda. 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 since then. 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."

Requirements for Filing Motions and Administrative Appeals

Continued over from the prior Unified Agenda. Long-term action at the proposed rule stage. 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."

Cross-Category Topics

Exploring Alternative Options to Physical Examination of I-9 Documentation

First time published in the Unified Agenda. DHS/USCIS RIN: 1653-AA86. Rulemaking Stage: Proposed Rule. Target Date: 06/00/2022. Title: Optional Alternative to the Physical Examination Associated With Employment Eligibility Verification (Form I-9). Abstract: "DHS plans to propose to revise employment eligibility verification regulations to allow the Secretary to authorize alternative document examination procedures in certain circumstances or with respect to certain employers. Future exercises of such authority may reduce burdens on employers and employees while maintaining the integrity of the employment verification process."

Inadmissibility on Public Charge Grounds

USCIS Rulemaking

Continued over from the prior Unified Agenda. DHS/USCIS RIN: 1615-AC74. Rulemaking Stage: Proposed Rule. Target Date: 03/00/2022. Title: Inadmissibility on Public Charge Grounds. Statement of Need: "DHS published an advance notice of proposed rulemaking seeking broad public feedback on the public charge ground of inadmissibility to inform DHS's development of a future regulatory proposal. DHS intends to use this feedback to develop a proposed rule that will be fully consistent with law; that will reflect empirical evidence to the extent relevant and available; that will be clear, fair, and comprehensible for officers as well as for noncitizens and their families; that will lead to fair and consistent adjudications and thus avoid unequal treatment of the similarly situated; and that will not otherwise unduly impose barriers on noncitizens seeking admission to or adjustment of status in the United States. DHS also intends to ensure that its regulatory proposal does not cause undue fear among immigrant communities or present other obstacles to immigrants and their families accessing public services available to them, particularly in light of the COVID-19 pandemic and the resulting long-term public health and economic impacts in the United States." See NAFSA's page Rulemaking on Public Charge Determinations for additional background.

DOS Rulemaking

Continued over from the prior Unified Agenda. DOS. RIN: 1400-AE87. Rulemaking Stage: Interim Final Rule. 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." DOS reopened the 2019 interim final rule's comment period until 01/18/2022, see 86 FR 64070 (November 17, 2021), and "invites comment on any issues that may be pertinent to its review of the IFR to determine (1) if the IFR should be rescinded or revised, and (2) what final rule should be adopted, if any." Also see NAFSA's page Rulemaking on Public Charge Determinations for additional background.

DACA Rulemaking

Continued over from the prior Unified Agenda. DHS/USCIS RIN: 1615-AC64. Rulemaking Stage: Proposed Rule. 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."

DHS published a proposed DACA rule in the Federal Register on September 28, 2021, with a 60-day comment period that closed on November 29, 2021. See 86 FR 53736 (September 28, 2021). On November 29, 2021, NAFSA joined other higher education associations in a comment letter led by the American Council on Education (ACE), submitted in response to the September 28, 2021 proposed DACA rule. See NAFSA's page DACA Resource Page: For International Student Advisers and Education Abroad Advisers for additional background.

Department of Education

Documentation of Foreign Source Gifts and Contracts

Continued over from the prior Unified Agenda. DoEd. RIN: 1840-AD50. Continues as a Long-term Action. 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

Continued over from the prior Unified Agenda. DoEd. RIN: 1875-AA15. Rulemaking Stage: Proposed Rule. Target Date: 08/00/2022. 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."

Some Background

  • Reginfo.gov's About the Unified Agenda page contains this helpful summary: "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. Agencies may also report "Completed Actions, which are rulemakings that are being Withdrawn or ending their lifecycle with a regulatory action that completes the rulemaking." The agency agendas generally do not include regulations concerning military or foreign affairs functions and regulations related solely to agency organization, management, or personnel matters."
  • Reginfo.gov describes the "RIN" used to identify each regulatory initiative: "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."
  • Also see the Office of the Federal Register's A Guide to the Rulemaking Process, and 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.