Mark A Ivener, A Law Corporation

Gov’t Agencies Release Info on Upcoming Regs

Several agencies recently released their semiannual regulatory agendas, which summarize planned upcoming proposed, interim, and final rules intended for publication. If past history is any indication, timetables often change and rules are frequently postponed, but the agencies’ semiannual regulatory agendas provide a good overview of what changes can be anticipated in the foreseeable future regarding implementation of processes and requirements.

Selected immigrant and nonimmigrant employment-related highlights of the lengthy semiannual regulatory agenda of the Department of Homeland Security (DHS) follow.

Eliminating substitution of beneficiaries on permanent labor certification applications. DHS will propose to eliminate the current practice of allowing the substitution of beneficiaries on permanent labor certifications, among other options. In addition, DHS is proposing to reduce further the likelihood of the submission of malafide Immigrant Petitions for Alien Worker (Forms I-140), which are employment-based petitions “supported by fraudulent or stale labor certification applications” for the permanent employment of aliens in the U.S., by proposing a 45-day period for employers to file approved permanent labor certifications in support of Form I-140 petitions with DHS after the issuance of an approved labor certification by the Department of Labor.

Requiring electronic filing. U.S. Citizenship and Immigration Services (USCIS), which is part of DHS, is restructuring its business processes to implement new procedures for filing, processing, and adjudicating all benefit applications and petitions. USCIS will move toward electronic filing and adjudication of benefits to streamline processing, modernize adjudications, and facilitate efficient and effective data collection and reporting.

Fee changes. In several upcoming rules, USCIS is proposing to raise fees or charge new fees. USCIS proposes to charge a new immigrant visa service fee to every immigrant visa applicant. Currently, USCIS does not charge immigrant visa applicants overseas the service fee that it charges to adjustment of status applicants in the U.S. By charging a new immigrant visa service fee, USCIS hopes to recover the full operating costs of providing maintenance services to all new permanent residents. USCIS expects to issue a notice of proposed rulemaking in January.

Another rule proposes increases in immigration benefit application and petition fees and the biometric fee for applicants/petitioners who apply for certain immigration benefits for fiscal years 2008 and FY 2009.

Changes in premium processing fees and timetables. Another DHS rule proposes to raise the premium processing fee for employment-based petitions and applications, and provides that all future fee adjustments for Premium Processing Service will be made annually through publication in the Federal Register. Meanwhile, an interim rule planned for mid-2007 changes the premium processing time from 15 calendar days to 15 business days and adds circumstances that will stop the premium processing clock. This rule also clarifies that for e-filed petitions and applications, the 15-business-day processing period begins when USCIS receives the initial required supporting documentation to adjudicate the case at the Service Center with jurisdiction over that case.

Allocating H-1B numbers. A final rule will implement certain changes made by the Omnibus Appropriations Act for Fiscal Year 2005 to the numerical limits on the H-1B nonimmigrant visa category and the fees for filing H-1B petitions. The rule also notifies the public of the procedures USCIS will use to allocate the additional H-1B numbers made available under that Act. This rule further modifies USCIS premium processing regulations by providing authority to delay, suspend, or set an alternate date on which the 15-calendar-day premium processing period starts.

Halting concurrent filing of I-140s and I-485s. USCIS is proposing to amend its regulations concerning employment-based immigrant status. Under the current regulations, employers may file a Form I-485, Application to Register Permanent Residence or Adjust Status (I-485) concurrently with Form I-140, Immigrant Petition for Alien Worker (immigrant petition), while the immigrant petition is pending; or after the immigrant petition has been approved, as long as a visa number is immediately available to the alien. The Department is considering modifying the current system to disallow concurrent I-140 and I-485 filings and instead mandate that a foreign worker applying for adjustment of status be the beneficiary of an approved immigrant petition prior to filing the adjustment application.

Withholding adjudication. An interim rule will expand the circumstances under which DHS may withhold adjudication or toll any applicable regulatory deadline for completion of adjudication of an application or petition.

Extending O and P filing times. This final rule amends DHS regulations to enable certain petitioners to file O and P nonimmigrant petitions up to one year before the petitioners’ need for the worker’s services. Petitioners frequently plan for an event or performance more than one year in advance when seeking O and/or P nonimmigrant workers. By extending the filing time requirement for O and P petitions from the current six months to one year, DHS “hopes to provide relief and assurance to petitioners that, if approvable, such petitions will be approved prior to the date of the petitioners’ need for the alien’s services.”

Reduction of employment verification documents. DHS intends to publish a final rule this year implementing changes to employment verification requirements, including a reduction in the number of documents required.

Elimination of advance parole requirement for H-1 and L workers. DHS plans to publish a final rule that, among other things, eliminates the requirement for permission for overseas travel for adjustment applicants who are maintaining H-1 or L nonimmigrant status.

Significantly changing H-2B agricultural worker regulations. Under the redesigned H-2B temporary nonagricultural program, employers seeking to use H-2B workers, except for applications filed for employment in Guam or in logging, will file directly with the DHS instead of first filing an application for labor certification with the Department of Labor (DOL). Under regulations simultaneously proposed by DOL and DHS, the employer will be required to conduct recruitment before filing its petition. The petition will include a number of attestations concerning labor market and related issues. DHS will administer the petition adjudication process. After adjudication, DOL will audit selected approved petitions. In such audits, DOL will exclusively examine whether the employer has complied with those aspects of the approved petition related to the labor market and other related attestations. Employers will be expected to have documentation available to support their attestations and will be required to provide such documentation to DOL within 30 days from notice of the audit. If, after completion of the audit, DOL determines that the employer has failed to comply with the terms of the attestations contained in the DHS petition or made material misrepresentations in its attestation, DOL will, after notice to the employer and opportunity for a hearing, recommend to DHS that the employer be debarred for a period of up to 3 years.

The DHS’s semiannual regulatory agenda is available at

As noted, other federal agencies have also issued their semiannual regulatory agendas, some of which have immigration-related components. For example, the Department of State’s agenda has final rules planned on the Student and Exchange Visitor Information System, uncertified foreign health care workers, exchange visitors, and others.

DOS’s agenda is at Other federal agency agendas can be found by clicking on the links at

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About the Author

Mark A. Ivener, A Law Corporation, a nationally recognized law firm, has successfully assisted hundreds of clients in immigration matters.