DHS Delays Rules on Changes to H-1B Program, AAO Appeals, I-9 Violations

By Roy Maurer Jun 2, 2014

The U.S. Department of Homeland Security’s (DHS) Spring 2014 Regulatory Agenda revealed delayed release dates for several final and proposed rules from the department’s immigration-related agencies. Postponed rules include proposals to make changes to the H-1B program, clarify Form I-9 violations, renew the H-1C nurse visa and streamline the processes of the department’s immigration appeals office.

Delayed Final Rules

U.S. Citizenship and Immigration Services (USCIS), Customs and Border Protection (CBP), and Immigration and Customs Enforcement (ICE) have released new dates for several rules relevant to HR professionals. These include:

  • Two February 2015 final rules implementing the Legal Immigration Family Equity Act, which will allow the spouses and children of lawful permanent residents and U.S. citizens to attain V and K visas, respectively, allowing recipients to live and work in the United States while waiting for a green card.
  • A February 2015 final rule precluding employers from filing duplicate petitions on behalf of the same foreign temporary worker subject to the annual H-1B numerical cap.
  • A rule postponed until February 2015 implementing the Nursing Relief for Disadvantaged Areas Act, which created the H-1C nonimmigrant nurse visa in 1999 in response to the shortage of qualified nurses in many regions of the United States. To qualify for the H-1C visa, 500 of which are granted annually, a nurse must be licensed or have obtained a nursing degree in the U.S. and must pass the NCLEX-RN exam. Nurses with an H-1C visa may work in the United States for up to three years. USCIS stopped accepting new H-1C petitions after December 2009, when Congress failed to reauthorize the program. The expiration does not affect the ability of nurses to apply for readmission.

Proposed Rules

The DHS agenda includes a proposed rule that was announced May 6, 2014, that provides work authorization to certain H-4 dependent spouses of H-1B visa holders. H-4 spouses who would be eligible to apply for work authorization include spouses of H-1B workers who have been approved for a green card, as well as the spouses of H-1B workers seeking lawful permanent residence and whose stay in the U.S. has been extended under the American Competitiveness in the 21st Century Act (AC21) beyond the normal six-year limit.

According to the DHS, granting work authorization to this group of immigrants “will encourage highly skilled, specially trained individuals to remain in the United States and continue to support U.S. businesses and the growth of the U.S. economy.” About 97,000 spouses are expected to become eligible for work authorization in the first year after the rule is finalized, with about 30,000 eligible annually after that. The comment period ends in July 2014, after which the DHS will formulate a final rule.

The department delayed until December 2014 the notice of a proposed rule that would implement certain provisions of the AC21, the Visa Waiver Permanent Program Act, the American Competitiveness and Workforce Improvement Act, and a law raising the fee for H-1B visas. According to the agenda, the laws make “significant changes” to the H-1B program and could include exempting certain individuals from the numerical cap, providing for the portability of employment authorization and, in certain circumstances, extensions of stay for certain individuals who have permanent residence applications pending.

A notice of proposed rulemaking originally scheduled for October 2013 amending regulations that clarify certain Form I-9 paperwork failures and violations has been rescheduled for November 2014. According to the agenda, this proposed rule would define a substantive violation and a technical or procedural failure and delineate the circumstances in which an employer may be subject to penalties or not, due to a good-faith attempt to comply when completing the form.

Another rule planned for October 2013 allowing students on F-1 visas with degrees in science, technology, engineering or mathematics to take advantage of a 17-month optional practical training extension to gain experience in those fields has been postponed until December 2014.

Listed as a long-term action, the DHS plans to extend the status of F-1 students and J-1 exchange visitors who couldn’t switch to H-1B status because of the annual H-1B cap. “This rule allows such aliens to avoid a lapse in their status because of a circumstance that is not under their control,” the department said.

The DHS also rescheduled until March 2015 the release of a proposed rule that revises the requirements and procedures for the filing of motions and appeals to the USCIS Administrative Appeals Office (AAO) in order to “streamline” those processes. The AAO, among other things, handles petitioners’ appeals of negative decisions concerning employment-based temporary and permanent visas.

Prevailing Wages for H-2B Workers

Work continues on the wage methodology for the H-2B guest worker program. The DHS and Department of Labor (DOL) wish to finalize an interim rule, issued in April 2013, which established a new methodology for calculating prevailing wages under the program, after a federal district court in Pennsylvania struck down a 2008 wage rule on which the DOL had been relying. The departments’ agendas state that they currently are reviewing public comments received during the interim final rule’s comment period, which ended in June 2013.

According to the DOL, a new proposed rule is expected to be issued in December 2014.

Under the rule, the DOL will use the Occupational Employment Statistics wage survey, collective bargaining agreements, the Davis-Bacon Act, the Service Contract Act or employer-provided surveys, depending on the circumstances, to determine prevailing wages for employers seeking to hire H-2B workers.

The rule also clarifies that Homeland Security is the executive agency charged with making determinations on eligibility for H-2B classification, after consulting with Labor about the methodology for setting the prevailing wages.

Roy Maurer is an online editor/manager for SHRM.

Follow him at @SHRMRoy

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