New Rules on H-1B Visas and H-2 Programs Are in the Works

​The Biden administration has reconfirmed its plans to reform the H-1B visa program for professional foreign workers this year—including raising the wages of those workers—as well as to update regulations for the H-2 guest-worker programs and publish a final rule related to the virtual review of I-9 documents.

Federal agencies typically announce their agendas twice a year; the latest updates are for proposals scheduled through 2023.

H-1B Visa Program Reforms

U.S. Citizenship and Immigration Services (USCIS) intends to offer a rule amending aspects of the H-1B visa program first proposed by the Trump administration. The proposal has been postponed since December 2021 and is now scheduled for October.

According to USCIS, the rule will:

• Redefine the H-1B employer-employee relationship.
• Establish new guidelines for employer site visits.
• Clarify rules for F-1 students awaiting a change of status to H-1B.
• Clarify the requirement that an amended or new H-1B visa petition must be filed if there are material changes to employment, including a new worksite location.

Wage Increases

The Department of Labor (DOL) continues to plan to advance a new prevailing wage regulation, now scheduled for September, based on the public feedback it received in a request for comments conducted in 2021.

A final rule proposed by the Trump administration raising wages for workers with H-1B visas and employment-based green cards was slated to take effect November 2022; however, it was vacated by a federal judge the previous year. The rule was issued in January 2021 as one of the last regulatory actions of the Trump administration.

H-2 Programs

Both the DOL and USCIS intend to reform the H-2A and H-2B temporary worker programs this summer. The DOL plans to revamp H-2B prevailing wage rules, the temporary labor certification process and enforcement of H-2B employer obligations. In addition, the agency announced plans to amend the H-2A temporary agricultural worker program to improve working conditions and protections for farmworkers. Publication of the new H-2A and H-2B proposed rules is currently scheduled for June and August, respectively.

Fee Increases

USCIS proposed a number of significant filing fee increases for multiple employment-based immigration petitions and applications on Jan. 4, in part to help fund soaring asylum claims at the U.S.-Mexico border.

The agency typically relies on user fees instead of congressional funding and stated that the new fees would allow it to "recover its operating costs, re-establish and maintain timely case processing, and prevent the accumulation of future case backlogs."

The COVID-19 pandemic led to a dramatic reduction in immigration processing and revenue, and immigration caseloads have since rebounded to pre-pandemic levels.

USCIS last adjusted its fees in December 2016, with a weighted average increase of 21 percent. The latest proposal would represent a weighted average increase of 40 percent.

The proposed changes would not take effect until after a 60-day public comment period is completed on March 6, the comments are evaluated, and a final rule is published and enacted, a process that can take several months.

A final regulation is also expected this month increasing civil monetary penalties for immigration-related violations to adjust for inflation.

Virtual I-9 Inspection

U.S. Immigration and Customs Enforcement (ICE) plans to publish a final rule in May giving it the authority to permit alternatives to in-person inspection of identity and employment authorization documents in the Form I-9 employment eligibility verification process.

The agency is currently reviewing public feedback on its August 2022 proposed rule.

The Society for Human Resource Management (SHRM) recognized the proposed rule as signaling the government's willingness to formalize pandemic-era flexibilities.

"We are encouraged by the efforts of [ICE] and their openness to adjusting the employment verification process to reflect the 21st century workforce," said Emily M. Dickens, chief of staff, head of public affairs and corporate secretary for SHRM. "At the same time, we had hoped to see a more fully developed proposed rule because many employers find the traditional Form I-9 processes to be burdensome."

Employers must complete Form I-9s for all workers to verify their employment eligibility. During the COVID-19 pandemic, ICE waived the requirement that employers inspect documents proving employment eligibility in person in workplaces that were operating remotely, and those employers have been allowed to use alternatives like videoconferencing, fax or e-mail. That flexibility was most recently extended through the end of July.

L-1 Changes

USCIS continues to show interest in its longer-term plans to propose amendments to the L-1 visa rules. Specifically, the agency intends to revise the definition of specialized knowledge, clarify the definitions of employment and employer-employee relationship, and potentially impose new wage requirements for L-1 visas.

B-1 Visa Proposal Removed

The State Department dropped from its agenda a Trump-era rule that would have eliminated the practice of allowing foreign nationals to enter the U.S. with a B-1 business visa to perform short-term H-1B work. The rule had been published as a proposal in October 2020, but a final rule did not follow. The State Department's spring 2022 regulatory agenda indicated that the agency was reconsidering the rule.