On June 30, 2020, the Administration published the Spring 2020 regulatory agenda.
Twice per year, in the Spring and the Fall, all agencies must prepare a regulatory agenda that lists each regulatory action the agency expects to work on within the next 12 months. The agencies' regulatory agendas are then published in the Unified Agenda of Regulatory and Deregulatory Actions.
This NAFSA compilation is from the Spring 2020 Unified Agenda of Regulatory and Deregulatory Actions, which was published on June 30, 2020.
A number of these items have been included in the Fall 2017, Spring 2018, Fall 2018, Spring 2019, and Fall 2019 regulatory agendas. The compilation includes immigration-related regulatory actions most relevant to institutions that invite international students and scholars to the United States. Refer to the Regulatory Agendas of each agency on Reginfo.gov for the full list of agency regulatory actions. Refer to NAFSA's Basics of Rulemaking Under the APA for background on the rulemaking process, where you will find, for example, an explanation of the difference between a proposed rule and a final rule.
Spring 2020 Highlights:
- Duration of Status proposed rule. OMB completed its review of the proposed rule on September 11, 2020.
- Practical Training Reform. Proposed rule target date moved from 08/2020 to 12/2020.
- Adjusting Program Fees for the Student and Exchange Visitor Program. Proposed rule target date 11/00/20.
- Eligibility Checks for P/DSOs and A/ROs. Proposed rule moved to long-term actions.
- "Final-Final" J Subpart A Rule. Final rule returned to active items, with a target date of 7/2020.
- Unlawful presence rulemaking. Proposed rule target date moved from 09/00/2020 to 03/00/2021.
- INA 212(e) Waiver Standards and Procedures. Withdrawn by DOS.
- Strengthening the H-1B Nonimmigrant Visa Classification Program. Proposed rule target date moved from 12/2019 to 12/2020, but DHS sent this item for OMB review as an interim final rule on 09/03/2020, despite the fact it was listed at the proposed rule stage in the Spring 2020 and prior regulatory agendas.
- Documentation of Foreign Source Gifts and Contracts. New proposed rule, target date of 6/2020.
Unlawful Presence Rulemaking
Proposed Rule Stage. Spring 2020 Agenda Target Date: 03/00/2021. Was 09/00/2020 in the Fall 2019 Agenda. DHS/USCIS, RIN 1615-AC46. DHS/USCIS published this item for the first time in the Fall 2019 regulatory agenda. It appears related to the agency's attempt to revise its unlawful presence policy via policy memo, which effort has been blocked in Federal court while litigation proceeds. See NAFSA's unlawful presence litigation page for background. As one element of the litigation involves the Administrative Procedures Act (APA), this proposed rule may be a tactic to resolve any APA issues by going through the public notice and comment rulemaking procedure.
Title: Enhancing the Integrity of the Unlawful Presence Inadmissibility Provisions. 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 intends to propose regulations to this effect, which may include or expand upon certain current agency policies, including whether certain failures to abide by the conditions of admission as a nonimmigrant can result in accrual of unlawful presence. Further, DHS intends to address how aliens 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."
Tinkering with Duration of Status
Proposed Rule Stage. Spring 2020 Agenda Target Date 07/00/2020 (was 02/00/2020 in the Fall and Spring 2019 agendas; 09/00/2019 in the Fall 2018 agenda). 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.
On June 3, 2020 DHS submitted the proposed rule for OMB/OIRA review. On September 11, 2020 OMB finished its review. This item at the proposed rule stage, which means that future rule making will proceed through normal APA public notice and comment procedures before any final rule is published. Now that OMB/OIRA has finished its review of the rule and returned it to DHS, the next step is for DHS to send the proposed rule to be published in the Federal Register, and open it for public comment. The first time we will be able to see the content of the proposed rule is when the Office of the Federal Register makes a public inspection copy of the rule available on its website at least 24 hours before it’s scheduled to be published.
For information updates, stay tuned to NAFSA's Proposal to Replace Duration of Status page.
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: U.S. Immigration and Customs Enforcement (ICE) will propose to modify the period of authorized stay for certain categories of nonimmigrants traveling to the United States from "duration of status" (D/S) and to replace such with a maximum period of authorized stay, and options for extensions, for each applicable visa category.
Statement of Need: The failure to provide certain categories of nonimmigrants with specific dates for their authorized periods of stay can cause confusion over how long they may lawfully remain in the United States and has complicated the efforts to reduce overstay rates for nonimmigrant students. The clarity created by date-certain admissions will help reduce the overstay rate.
Summary of the Legal Basis: The Secretary of Homeland Security (Secretary) has broad authority to administer and enforce the nation’s immigration laws. See generally 6 U.S.C. 202; Immigration and Nationality Act of 1952, as amended (INA), Sec. 103, 8 U.S.C. 1103. Section 101(a)(15)(F) of the INA establishes the F nonimmigrant classification for individuals who wish to come to the United States temporarily to enroll in a full course of study at an academic or language training school certified by ICE’s SEVP. 8 U.S.C. 1101(a)(15)(F)(i). INA Section 101(a)(15)(I) establishes the I nonimmigrant classification for bona fide representatives of foreign press, radio, film, or other information media seeking to enter the United States to engage in such vocation as well as the spouse and children of such nonimmigrant. 8 U.S.C. 1101(a)(15)(I). INA Section 101(a)(15)(J) establishes the J nonimmigrant classification for aliens who wish to engage in exchange visitor programs so designated by the Department of State as well as the spouse and minor children of such nonimmigrant. 8 U.S.C. 1101(a)(15)(J). Under section 214(a)(1) of the INA, 8 U.S.C. 1184(a)(1), the Secretary has broad authority to prescribe by regulation the time and conditions of admission of all nonimmigrants.
Anticipated Costs and Benefits: ICE is in the process of assessing the costs and benefits that would be incurred by regulated entities and individuals, as well as the costs and benefits to the public at large. ICE, SEVP certified schools, nonimmigrant students, and the employers of nonimmigrant students who participate in practical training would incur costs for increased requirements. This rule is intended to decrease the incidence of nonimmigrant student overstays and improve the integrity of the nonimmigrant student visa.
F-1 and M-1 Students
Practical Training Reform
Proposed Rule Stage. Spring 2020 Agenda Target Date 12/00/2020. Agency: DHS/ICE. RIN 1653-AA76. The Bureau of Immigration and Customs Enforcement (ICE) added reference to a proposed rule titled "Practical Training Reform" to the Department of Homeland Security (DHS) Fall 2017 Regulatory Agenda, with a projected publication date of 10/00/18. The item continued in the Spring 2018 regulatory agenda with the same target publication date. In the Fall 2018 agenda it was moved to Long-Term Actions with no projected date, and it remained as a long-term action in the Spring 2019 regulatory agenda. It was placed back in the proposed rule stage, however, in the Fall 2019 agenda, with a target date of 08/00/2020, and continues in the Spring 2020 agenda with a target date of 12/00/2020.
- The Spring 2018 agenda described a planned proposed rule this way: "ICE will prepare this rule to improve protections of U.S. workers who may be negatively impacted by employment of nonimmigrant students on F and M visas. The rule would implement new requirements that would reduce fraud and abuse in the practical training programs. The proposed provisions include increased oversight of the schools and students participating in the program to ensure compliance with requirements of the program."
- The Fall 2018 agenda described the long-term action this way: "ICE will propose this rule to improve protections of U.S. workers who may be negatively impacted by employment of nonimmigrant students on F and M visas. The rule is a comprehensive reform of practical training options intended to reduce fraud and abuse."
- The Spring 2019 agenda further reduced the description of the long-term action: "ICE will propose this rule to revise the practical training options available to nonimmigrant students on F and M visas."
- The Fall 2019 agenda abstracted the proposed rule as: "ICE will amend existing regulations and revise the practical training options available to nonimmigrant students on F and M visas."
- The Spring 2020 agenda abstracted the proposed rule the same way, as "ICE will amend existing regulations and revise the practical training options available to nonimmigrant students on F and M visas."
Also see NAFSA's Practical Training Reform page.
Adjusting Program Fees for the Student and Exchange Visitor Program
Proposed Rule Stage. Spring 2020 agenda target date: 11/00/20. Agency: DHS/ICE. RIN 1653-AA81. Abstract: "ICE will 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. ICE has determined that increasing the fees is necessary to support increased compliance including worksite enforcement, investigating fraud related to nonimmigrant employment, and enforcement regarding nonimmigrant students who violate their status. The SEVP fee schedule was last adjusted in a rule published on May 23, 2019."
Eligibility Checks of Nominated and Current Designated School Officials of Schools That Enroll F and M Nonimmigrant Students and of Exchange Visitor Program-Designated Sponsors of J Nonimmigrants
Proposed Rule Stage. Moved to long-term actions in the Spring 2020 Agenda, with no target date. Target date history: Fall 2019 agenda: 06/00/2020; Spring 2019 agenda: 02/00/2020; Fall 2019 agendas: 03/00/2019. Agency: DHS/ICE. RIN 1653-AA71. Abstract: "ICE's Student and Exchange Visitor Program (SEVP) protects national security by ensuring that DHS and Department of State (DOS) have essential data related to nonimmigrant students and exchange visitors. ICE proposes to vet all designated school officials (DSOs) and responsible officers (ROs), who ensure that ICE has access to accurate data on covered individuals via the Student and Exchange Visitor Information System (SEVIS). By requiring DSOs and ROs to undergo an eligibility check, the rule would help DHS prevent potential criminal activities or threats to national security that may result from non-compliance by DSOs and SEVP-certified schools, or ROs and Exchange Visitor Program (EVP) sponsors. The rule would also ensure that SEVP has the necessary enforcement and accountability mechanisms built into the SEVIS to safeguard U.S. security interests."
Flight Training for Aliens and Other Designated Individuals; Security Awareness Training for Flight School Employees
Final Rule Stage. Spring 2020 Agenda Target Date 01/00/2021. Agency: DHS/TSA. RIN 1652-AA35. 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. TSA subsequently issued exemptions and interpretations in response to comments on the IFR and questions raised during operation of the program since 2004. TSA also issued a fee notice on April 13, 2009. This regulation requires flight schools to notify TSA when aliens, and other individuals designated by TSA, apply for flight training or recurrent training. TSA is considering a final rule 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."
Also See Elsewhere on This Page
J Exchange Visitors
"Final-Final" Subpart A
Final Rule Stage. The Spring 2020 agenda moved this item back into active items, with a target date of 07/00/2020. It had been moved to long-term actions in the Fall 2020 agenda. Prior to that it had a target date of 08/00/2019 in the Spring 2019 DOS agenda and 01/00/19 in the Fall 2018 agenda. Agency: DOS. RIN 1400-AC36.
Title: Exchange Visitor Program--General Provisions. Abstract: "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."
Alien Physician Category - Change in Certification Authority
Final Rule Stage. Spring 2020 Agenda Target Date: 06/00/2020. First time published in the Unified Agenda. Agency: DOS. RIN 1400-AF03. Title: Exchange Visitors: Change to Certification Authority for the Alien Physician Category of the Exchange Visitor Program. Abstract: "The Department of State (Department) is changing the certification authority for alien physicians from the American Board of Medical Specialties (ABMS) to the Accreditation Council for Graduate Medical Education (ACGME)." This would update DOS regulations at 22 CFR 62.27(e).
INA 212(e) Waiver Standards and Procedures
Withdrawn. No longer on the DOS regulatory agenda. This item RIN 1400-AE48 now shows: Withdrawn -- Department will not pursue, 02/21/2020. The item had been titled: Visas: Two-Year Home-Country Physical Presence Requirement, abstracted as: "The Department intends to revise 22 CFR 41.63 to change the standard and procedures for the Waiver Review Division's consideration of requests for a recommendation on waiver of the 'two year home-country physical presence requirement' for certain exchange visitors." History of this item in the DOS regulatory agenda:
- First published in the Fall 2017 agenda with a 03/00/2018 target date and the following abstract: "The Department intends to revise 22 CFR 41.63(b) and (d) creating a presumption against recommending waivers of the INA 212(e) two year home-country presence requirement for no-objection and exceptional hardship cases."
- Spring 2018 agenda with a 07/00/2018 target date and revising the abstract to read: "The Department intends to revise 22 CFR 41.63 to change the standard and procedures for the Waiver Review Division’s consideration of requests for a recommendation on waiver of the "two year home-country physical presence requirement” for certain exchange visitors."
- Fall 2018 agenda with an 11/00/2018 target date and the same abstract as the prior agenda.
- Spring 2019 agenda with a 12/00/2019 target date and the same abstract as the prior agenda.
- Fall 2019 agenda with a 03/00/2020 target date and the same abstract as the prior agenda.
- 02/21/2020: Withdrawn -- Department will not pursue.
Also See Elsewhere on This Page
H-1B Specialty Workers
Proposed Rule Stage. Spring 2020 Agenda Target Date 12/00/2020. Target date history: 12/00/19 in the Fall 2019 agenda; 08/00/19 in the Spring 2019 agenda; 01/00/19 in the Fall 2018 agenda. Agency: DHS/USCIS. RIN 1615-AC13. Abstract: "The Department of Homeland Security (DHS) will propose to revise the definition of specialty occupation to increase focus on obtaining the best and the brightest foreign nationals via the H-1B program, and revise the definition of employment and employer-employee relationship to better protect U.S. workers and wages. In addition, DHS will propose additional requirements designed to ensure employers pay appropriate wages to H-1B visa holders." Statement of Need: "The purpose of these changes is to ensure that H-1B visas are awarded only to individuals who will be working in a job which meets the statutory definition of specialty occupation. In addition, these changes are intended to ensure that the H-1B program supplements the U.S. workforce and strengthens U.S. worker protections."
- DHS sent this item for OMB review as an interim final rule on 09/03/2020, despite the fact it was listed at the proposed rule stage in the Spring 2020 and prior regulatory agendas.
Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization
Proposed Rule Stage. Spring 2020 Agenda Target Date: 09/00/2020. The target date in the Fall 2019 agenda was 03/00/2020. Note: On February 20, 2019, DHS submitted this proposed rule for OMB review.Agency: DHS/USCIS. RIN 1615-AC15. 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 is publishing this notice of proposed rulemaking to propose to remove from its regulations this class of aliens for eligibility for employment authorization."
Scope and Procedures for B-1/B-2 Maintenance of Status and Departure Bond Pilot Program
Final Rule Stage. Spring 2020 Agenda Target Date: 07/00/2020. Added for the first time in the Spring 2020 regulatory agenda. Agency: DOS. RIN: 1400-AE99. Title: Visas: Temporary Visitors for Business or Pleasure. Abstract: "The Department is setting the scope and procedures for a pilot program under which consular officers will require certain individuals applying for visas as temporary visitors for business or pleasure (B-1/B-2 visas) to post a Maintenance of Status and Departure Bond as determined appropriate by the consular officer as a condition of visa issuance, to ensure the individual will not overstay his or her period of lawful admission."
DOS Implementing Rulemaking Policies
Final Rule Stage. Spring 2020 Agenda Target Date: 06/00/2020. Added for the first time in the Spring 2020 regulatory agenda. Agency: DOS. RIN: 1400-AF01. Title: Administrative Procedure: Rulemaking, Guidance, and Information Collections. Abstract: "In this rulemaking, the Department of State implements Executive Order 13891 and OMB Guidance M-20-05." Note: the reference to OMB Guidane M-20-05 may be in error. OMB Guidance M-20-02 is a more likely and relevant memorandum.
DOS Fast-Tracks Rule to Provide That a B-2 Visa "Does Not Include Birth Tourism"
Final Rule. Added for the first time in the Fall 2019 regulatory agenda, DOS submitted this final rule for OMB review on October 18, 2019. OMB completed its review on January 8, 2020. The final rule was published in the Federal Register at 85 FR 4219 (January 24, 2020). See NAFSA's summary of the final rule.
Visas: Documentation of Nonimmigrants Under the Immigration and Nationality Act, as Amended
Proposed Rule Stage. Spring 2020 Agenda Target Date: 10/00/2020 (was 03/00/2020 in the Fall 2019 agenda and 10/00/2019 in the Spring 2019 agenda). Agency: DOS. RIN 1400-AE79.
- Abstract from Spring 2019 agenda: "This notice of proposed rulemaking would amend regulations at 22 CFR 41.31 to clarify Department requirements for B nonimmigrant visas; to make requirements easy for the public to understand and comply with; and to clarify, improve upon, and consolidate into regulation numerous policies that have never been codified."
- Abstract from Fall 2019 and Spring 2020 agendas: "This notice of proposed rulemaking would amend 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 change policies."
Visas: Temporary Visitors for Business or Pleasure
Proposed Rule Stage. Spring 2020 Agenda Target Date: 06/00/2020 (was 12/00/2019 in the Fall 2019 agenda). Agency: DHS/USCIS. RIN 1400-AE95. 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."
Nonimmigrant Classes: Temporary Visitors to the United States for Business or Pleasure
Proposed Rule Stage. Spring 2020 Agenda Target Date: 06/00/2020 (first appeared in the Fall 2018 regulatory agenda at the proposed rule stage with a 09/00/2019 target date, but was moved to DHS Long-Term Actions in the Spring 2019 agenda, then moved back into active items in the Fall 2019 agenda with a 08/00/2020 target date). Agency: DHS/USCIS. RIN 1651-AA99.
- Fall 2019 Title: Nonimmigrant Classes: Temporary Visitors to the United States for Business or Pleasure. 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 will clarify the criteria for according B-1 or B-2 nonimmigrant classification to applicants for admission to the United States. Such clarification is necessary to ensure fair and consistent adjudication and enforcement, as well as to make the criteria more transparent."
- Spring 2020 Title: Admission, Extension, and Maintenance of Status for Temporary Visitors to the United States for Business or Pleasure. 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. The purpose of this rule is to better align the admission/extension period for these visitors with the requirements set forth in the Immigration & Nationality Act."
Visas, Entry, Exit, Biometrics
Collection of Biometric Data From Aliens Upon Entry To and Exit From the United States
Proposed Rule Stage. Spring 2020 Agenda Target Date: 06/00/2020. Agency: DHS/CBP. RIN 1651-AB12. Title: Collection of Biometric Data From Aliens 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 aliens entering and departing the United States. In addition, Executive Order 13780, Protecting the Nation from Foreign Terrorist Entry into the United States, published in the Federal Register at 82 FR 13209, states that DHS is to expedite the completion and implementation of a biometric entry-exit tracking system. Although the current regulations provide that DHS may require certain aliens to provide biometrics when entering and departing the United States, they only authorize DHS to collect biometrics from certain aliens upon departure under pilot programs at land ports and at up to 15 airports and seaports. To provide the legal framework for CBP to begin a comprehensive biometric entry-exit system, DHS is amending the regulations to remove the references to pilot programs and the port limitation. In addition, to enable CBP to make the process for verifying the identity of aliens more efficient, accurate, and secure by using facial recognition technology, DHS is amending the regulations to provide that all aliens may be required to be photographed upon entry and/or departure.
- This rule had been submitted for OMB review on 04/23/2019 as an "interim final rule." Its listing as a proposed rule in the Spring 2020 regulatory agenda may indicate that DHS has stepped back a bit to seek public comment.
Collection and Use of Biometrics by U.S. Citizenship and Immigration Services
Proposed Rule Stage. Spring 2020 Agenda Target Date: 07/00/2020 (was 01/00/2020 in the Fall 2019 agenda and 12/00/2019 in the Spring 2019 agenda). Agency: DHS/USCIS. RIN 1615-AC14. Abstract: "The Department of Homeland Security (DHS) will propose to update its regulations to eliminate multiple references to specific biometric types, and to allow for the expansion of the types of biometrics required to establish and verify an identity. DHS will also propose to modify age restrictions where they exist to detect, deter, or prevent human trafficking of children; establish consistent identity enrollment and verification policies and processes; and align U.S. Citizenship and Immigration Services (USCIS) biometric collection with other immigration operations. The DHS proposal will provide a definition to the public on the term biometric and how biometrics will be used in the immigration process."
- USCIS submitted this proposed rule for OMB review on 12/19/2020. OMB finished its review of the proposed rule on 08/20/2020.
- A September 1, 2020 DHS Press Release, DHS, USCIS to Modernize, Define the Collection of Biometrics, indicates that publication of the proposed rule is imminent.
- A 328-page advance public inspection copy of the proposed rule was made available on September 4, 2020. The proposed rule will be published in the Federal Register on September 11, 2020.
Implementation of the Electronic System for Travel Authorization (ESTA) at U.S. Land Borders
Interim Final Rule Stage. Spring 2020 Agenda Target Date: 06/00/2020 (was 12/00/2019 in the Fall 2019 agenda, 10/00/2019 in the Spring 2019 agenda, and 12/00/2018 in Fall 2018 agenda). Agency: DHS/CBP. RIN 1651-AB14. 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 aliens who intend to enter the United States under the Visa Waiver Program (VWP) at land ports of entry. Currently, aliens from VWP countries must provide certain biographic information to U.S. Customs and Border Protection (CBP) officers at land ports of entry on a paper I-94W Nonimmigrant Visa Waiver Arrival/Departure Record (Form I-94W). Under this rule, these VWP travelers will instead provide this information to CBP electronically through ESTA prior to application for admission to the United States. DHS has already implemented the ESTA requirements for aliens who intend to enter the United States under the VWP at air or sea ports of entry."
- DHS submitted this interim final rule to OMB for review on December 5, 2019.
Documents to Establish Identity and Eligibility for an Immigrant Visa
Final Rule Stage. Spring 2020 Agenda Target Date: 06/00/2020. Added for the first time in the Spring 2020 regulatory agenda. Agency: DOS. RIN: 1400-AF07. Title: Visas: Immigrant Documentation. Abstract: "The Department is updating 22 CFR 42.63 to reflect the required documents for immigrant applicants to establish identity and eligibility."
Final Rule Stage. Spring 2020 Agenda Target Date: 07/00/2020. Added for the first time in the Spring 2020 regulatory agenda. Agency: DOS. RIN: 1400-AF08. Title: Visas: Immigrant Documentation. Abstract: "The Department of State is proposing changes to 22 CFR 42.63 and 42.65. The proposal would move language relating to the additional information consular officers may request from an immigrant visa applicant, from 42.63 to 42.65, and propose new types or formats of documents the Department would require to establish identity and eligibility for an immigrant visa."
DOS Withdrawn Rulemaking
Visas: Priority Date of a Preference Visa Applicant. Withdrawn. Spring 2020 agenda states: Withdrawn - Department will not pursue, 02/21/2020. Agency: DOS. RIN 1400-AE80. Title: Visas: Priority Date of a Preference Visa Applicant. Abstract: "This notice of proposed rulemaking would amend regulations at 22 CFR 42.53 to provide that a spouse or child of a principal applicant is entitled to the priority date of the principal alien only if acquired prior to the issuance of an immigrant visa to the principal alien, with certain exceptions."
A-1, A-2, G-1, G-2, G-3, G-4 Alternative Visa Flexibility. DOS withdrew this rulemaking item on 09/16/2019. The Spring 2019 regulatory agenda had reset the target date to 10/00/2019 (it was set at 12/00/2018 in the Fall 2018 agenda). Agency: DOS. RIN 1400-AE14. Abstract: "Visas: Documentation of Nonimmigrants Under the Immigration and Nationality Act, as Amended. This regulation change allows the Department to authorize an immediate family member of an alien properly classified as an A-1, A-2, G-1, G-2, G-3, or G-4 principal nonimmigrant to obtain a different nonimmigrant visa, maintain current nonimmigrant visa status, or change to a different nonimmigrant visa status without being restricted to the principal's A-1, A-2, G-1, G-2, G-3, or G-4 nonimmigrant visa category. Recent cases involving changes of status have led to increased interest in revising the A/G required rule to provide the Department discretion in its application, with the goal of avoiding potential bilateral irritants."
Visas: Nonimmigrant Visa Medical Exam. OIRA update page states that this rule was withdrawn on 06/29/2020. Proposed Rule Stage. Spring 2020 Agenda target date: 06/00/2020. Agency: DOS. RIN: 1400-AE47. 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."
Fees, Filing, and Processing
Proposed Rule Stage. Spring 2020 Agenda Target Date: 06/00/2020 (was 11/00/2019 in the Fall 2019 agenda, 07/00/2019 in the Spring 2019 agenda, and 12/00/2018 in the Fall 2018 agenda). Agency: DOS. RIN 1400-AE15. Title: Schedule of Fees for Consular Services. Abstract: "The Department of State amends the Schedule of Fees for Consular Services (Schedule) for certain nonimmigrant visas, certain immigrant visas, special visa services fees, and certain citizenship services fees. This rule amends the fees for passport books and cards. The rule also amends the security surcharge for immigrant visa services and the fees for certain immigrant visa services. The Department of State is adjusting the fees in light of the findings of the most recently approved update to the Cost of Service Model to ensure that the fees for consular services better align with the costs of providing those services." DOS submitted this rule to OMB for review on 08/22/2019.
Visa Security Program Fee
Proposed Rule Stage. Spring 2020 Agenda Target Date: 12/00/2020 (was 04/00/2020 in the Fall 2019 agenda). Agency: DHS. RIN 1653-AA77. 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 published a final fee rule on August 3, 2020. The rule will become effective 60 days later, on October 2, 2020. "Any application, petition, or request postmarked on or after this date must be accompanied with the fees established by this final rule." The rule also makes changes to Form I-129, premium processing, and other fee processing changes. See NAFSA's page for details.
Electronic Processing of Immigration Benefit Requests
Proposed Rule Stage. Spring 2020 Agenda Target Date: 06/00/2020 (was 12/00/2019 in the Fall 2019 and Spring 2019 agendas). Agency: DHS/USCIS. RIN 1615-AC20. Title: Electronic Processing of USCIS Immigration Benefit Requests. Abstract: "The Department of Homeland Security (DHS) will propose to: (1) Set requirements for online submission for immigration benefit requests and explain the requirements associated with electronic processing; and (2) make changes to existing regulations to allow end-to-end digital processing." Statement of Need: "To address the inefficiency of relying on paper, U.S. Citizenship and Immigration Services is transitioning to a digital environment for processing immigration benefit requests. Agency experience demonstrates that the electronic processing of benefit requests is more efficient and effective than the traditional paper processes, during the immediate request, throughout the immigration life cycle, and beyond. Electronic processing will largely eliminate the enormous cost of paper intake, shipping and storage, strengthen information security, and reduce redundancy and the potential for error in adjudication processs. For requestors, electronic processing will improve the experience of applying for immigration benefits at each stage of the process." Related information:
- On May 22, 2019, USCIS announced a strategy it calls eProcessing "to accelerate USCIS' transition to a digital business model. eProcessing will be a complete digital experience, from applying for a benefit, to communicating with USCIS, through receiving a decision on a case... As a first step, certain visitors for business, visitors for pleasure, and vocational students can now apply online to extend their stay in the United States. Additional classifications are coming soon."
- On May 7, 2019, USCIS updated its CLAIMS3 Privacy Impact Assessment (PIA) "to provide notice of system changes in support of the USCIS eProcessing initiative. Upon publication of this PIA, CLAIMS 3 will (1) support the acceptance of certain electronically filed immigration benefits; (2) include a new icon enabling users to retrieve and view immigration content in support of the benefit adjudication; and, (3) communicate with RAILS (not an acronym) to identify the location of the immigration file. This PIA update evaluates the privacy risks and mitigations associated with these updates including the collection, use, and maintenance of personally identifiable information (PII)."
Updating Adjustment of Status Procedures for More Efficient Processing and Immigrant Visa Usage
Proposed Rule Stage. Spring 2020 agenda: moved to Long-Term Actions (it had a target date of 04/00/2020 in the Fall 2019 agenda, and 09/00/2019 in the Spring 2019 agenda). Agency: DHS/USCIS. RIN 1615-AC22. 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. DHS proposes to eliminate the concurrent filing of visa petitions and Form I-485 for all applicants seeking an immigrant visa in a preference category, and proposes to make further changes to the appropriate dates when applicants can file Form I- 485 and for ancillary benefits."
Implementing a Known Employer Program for Certain Employment-Based Nonimmigrant and Immigrant Visa Classification
Long-Term Action, 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 paper work for all parties. This NPRM would propose to codify the USCIS' Known Employer Pilot Program, which has been in effect since March 2016 and runs through May 2020."
Proposed Rule Stage. Spring 2020 agenda: moved to Long-Term Actions, 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."
Updated English Language Proficiency Requirements for Certain Foreign Health Workers
Long-Term Action, no target date. Interim Final Rule stage. Agency: DHS/USCIS. RIN 1615-AC16. Title: Updated English Language Proficiency Requirements for Certain Foreign Health Workers Abstract: "The Department of Homeland Security (DHS) is amending its regulations at 8 CFR 212.15 governing certificates for foreign healthcare workers to update the English language requirements applicable to certain foreign nationals seeking admission to the United States for the purposes of performing labor as healthcare workers in one of seven cove.red non-physician healthcare professions. The Secretary of Health and Human Services, in consultation with the Secretary of Education, is tasked with setting standards for the English language requirements for foreign healthcare workers under the authority of section 343 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), 8 U.S.C. 1182(a)(5)(C) and 1182(r), and 8 CFR 212.15(g), including identifying appropriate standardized tests and minimum scores. Updated DHS regulations for English language competency are important for ensuring transparency so that that those seeking to enter the United States as healthcare workers are competent to communicate with an interdisciplinary team of providers and the patients and families they serve. Consistent with the statute and governing regulations, the Department of Health and Human Services (HHS) has notified DHS of additions and deletions to the approved list of testing agencies, tests, and minimum scores. Therefore, this rule updates DHS regulations to reflect updated English language proficiency requirements set by HHS."
Department of Education
Documentation of Foreign Source Gifts and Contracts
Proposed Rule Stage. Spring 2020 Agenda Target Date: 06/00/2020. Agency: ED/OPE. RIN 1840-AD50. Title: Documentation of Foreign Source Gifts and Contracts. Abstract: "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." Also see NAFSA's resource page on this topic.
Proposal to Revise FERPA Regulations
Proposed Rule Stage. Spring 2020 Agenda Target Date: 08/00/2020. Agency: ED/OPEPD. RIN 1875-AA15. Title: Family Educational Rights and Privacy Act. Abstract: "The Department of Education proposes 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. The proposed regulations are also needed to implement statutory amendments to FERPA contained in the Uninterrupted Scholars Act (USA) 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."
Department of Justice
DOJ: Inadmissibility and Deportability on Public Charge Grounds
Proposed Rule Stage. Spring 2020 Agenda Target Date: 06/00/2020. Agency: DOJ/EOIR. RIN 1125-AA84. Title: Inadmissibility and Deportability on Public Charge Grounds. Abstract: "The Department of Justice (DOJ) proposes to change how adjudicators within the Executive Office for Immigration Review (EOIR) determine whether an alien 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 rule is intended to make certain revisions to more closely conform EOIR’s regulations with the DHS public charge rule." Also see NAFSA's page discussing the DHS public charge rule.
- 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."