White House Reveals Workplace Immigration Plans for Rest of Year

The Biden administration in the second half of 2024 intends to finalize its revamp of the H-1B visa program, amend the H-2A and H-2B seasonal worker programs, and propose a rule updating the Schedule A list of occupations exempt from the PERM labor certification process, according to the White House’s latest regulatory agenda.

This article outlines the regulatory changes the Biden administration is planning for employment-based immigration in the remainder of 2024. Note, however, that agency agendas feature goals that are often postponed and sometimes never come to fruition. Add to that the intensifying focus of an election year and the knowledge that any regulatory plans left unfinished could be abandoned—and regulations could be reversed—if Republican Donald Trump wins the White House later this year.

H-1B Final Rule

The most highly anticipated regulatory action related to employment-based immigration this year is the comprehensive final rule overhauling the H-1B program, slated for publication in December.

U.S. Citizenship and Immigration Services (USCIS) in October 2023 published a proposed rule with provisions revising the educational eligibility criteria for the H-1B program, clarifying when employers must amend petitions due to changes in employment, addressing fraud in the H-1B cap registration process, and codifying the agency’s site visit inspection program, among many other proposed measures.

The rule drew voluminous discussion. Experts agreed that much of the proposal codifies current policies and practices in favor of most employers that use the H-1B program, but new regulatory language also raised questions. One aspect in need of further clarification is the program’s most important: the eligibility criteria for an H-1B approval.

USCIS wants to significantly modify the regulatory definition of a “specialty occupation,” the standard used to determine if a position qualifies for H-1B sponsorship.

Currently, the statute defines a specialty occupation as “an occupation which requires theoretical and practical application of a body of highly specialized knowledge” and “which requires the attainment of a bachelor’s degree or higher in a specific specialty, or its equivalent, as a minimum.”

The proposed rule would codify that:

• A specialty occupation position can require a range of degree fields, as long as there is a direct relationship between each degree field and the duties of the position.
• A position does not qualify as a specialty occupation if it only requires attainment of a general degree, without further specialization.
• The requirement that the position “normally” requires a bachelor’s degree does not mean “always.”

Immigration attorneys disagreed on whether the proposed regulatory language will be more limiting or more amenable for employers and workers.

“I get the impression that USCIS was trying to clear things up,” said Kevin Miner, a partner in the Atlanta office of global immigration law firm Fragomen. But the language in the proposed rule still leaves a lot of uncertainty as to how USCIS adjudicators will evaluate H-1B petitions, and that lack of clarity is a real concern, he said.

H-2A and H-2B Program Reforms

The Department of Homeland Security (DHS) is also planning to finalize a regulation in November that would add new H-2 employer obligations and worker safeguards. The proposal contains various provisions, including new whistleblower protections; additional penalties for employers that charge workers prohibited fees; expanded grace periods for workers who lose employment; permanent portability for workers to move between employers; and the ability for workers to seek green cards (permanent residency) while maintaining H-2 status.

Immigration attorneys interviewed by SHRM Online agreed that the proposed rule improves the H-2 programs, but they are still waiting to see how broad the worker protection provisions will be in the final rule.

“It will be beneficial to the integrity of the H-2 programs overall,” said Loan Huynh, an attorney in the Minneapolis office of Fredrikson. “But we need more clarity and guidance on the provisions around worker protections.”

Revising Schedule A

The Department of Labor (DOL) has set an August target date to complete its review and analysis of the public comments related to an expansion of the Schedule A list of occupations exempt from the PERM labor certification process. The department requested the feedback in December 2023.

“Schedule A is a list of occupations where the DOL has in essence predetermined a shortage exists in the labor market,” said Dawn Lurie, senior counsel in Seyfarth’s Washington, D.C., office. “For occupations on this list, U.S. employers may bypass the labor market test that is currently required to sponsor foreign workers for green cards.”

The list of labor-certification-exempt occupations currently covers nurses and physical therapists, but DOL is expected to consider adding AI and other STEM-related occupations to the list.

Other Items

In addition, DHS is planning to propose a regulation to improve the adjustment-of-status process—slated for publication in August—and issue a final rule in December related to the automatic extension of work authorization for certain employment authorization document (EAD) renewal applicants.   

Looking Ahead to 2025

DHS is already making plans for next year, leading off 2025 with planned amendments to regulations governing foreign temporary workers, including updating the employment authorization rules regarding dependent spouses; increasing flexibilities for workers who resign or are terminated from employment; and improving EAD policies and procedures. These proposals are scheduled for January.

DHS also plans to finalize a regulation by April 2025 to expand the 9/11 Response and Biometric Entry-Exit fee imposed on employers with a large percentage of workers in H-1B or L-1 status.

Currently, H-1B and L-1 petitions filed by these employers are required to include the additional $4,000 (H-1B) or $4,500 (L-1) fees only in initial petitions or a change of employer in the same status. The forthcoming rule will expand the fee to extensions of stay.

The 9/11 Response and Biometric Entry-Exit Fee funds national security programs, including a system to track the entry and exit of non-U.S. citizens.

Meanwhile, the DOL plans to further update the regulations for the H-2B seasonal worker program, including prevailing wage rules, the temporary labor certification process, and enforcement of H-2B employer obligations. The proposed rule is projected for publication in April 2025.

Lastly, a proposed rule from DHS amending the regulations around employment-based petitions for workers seeking green cards has been pushed to June 2025.