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Spring 2021 Regulatory Agenda Overview

The Biden administration’s spring regulatory agenda is available. Notable actions impacting employment-based immigration include:

The Department of Homeland Security (DHS) is proposing to amend its regulations governing H-1B specialty occupation workers and F-1 students who are the beneficiaries of timely filed H-1B cap-subject petitions. Specifically, DHS plans to propose a revision of the regulations relating to “employer-employee relationship;” implement new requirements and guidelines for site visits including in connection with petitions filed by H-1B dependent employers and H-1B petitions where there is indicia of fraud; provide flexibility on the employment start date listed on the petition (in limited circumstances); address “cap-gap” issues; and clarify the requirement that an amended or new petition be filed where there are material changes, including by streamlining notification requirements relating to certain worksite changes, among other provisions.

The proposal will not likely be released until December 2021 and will undergo a public comment period and OMB regulatory review before any final regulations can take effect.

USCIS filing fees will also be expected to increase. Notice of the new fees will likely not be available until at least November 2021.

USCIS also intends to establish the new options for premium processing that were contained in the Emergency Stopgap USCIS Stabilization Act in October 2020. The Agenda sets this at the Final Rule Stage with intended action in September 2021.

The Department of Labor (DOL) anticipates a new round of rule making relating to prevailing wage methodology and levels for H-1B/H-1B1/E-3 and PERM. The new proposal will not likely be released before November 2021. It will also be subject to public comment and OMB review prior to any final regulation taking effect.