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  1. 1. Page 1 of 4 REGULATORY AGENDA ITEMS FOR USCIS By Joseph P. Whalen (Wednesday, December 16, 2015) In case you missed this item, please be aware of things to come from USCIS. First, the biannual Fee Schedule Rule will be coming in the Summer of 2016. It happens every two years. Will there be any surprises? I don’t know, if I did then they wouldn’t be surprises! We will all just have to be patient. In other areas, we will see the beginnings or latest stage of development of the following rules from USCIS. There are two particular agenda items that I am very interested in which I have highlighted in yellow. Here is what was just published (this is from Part II, which is 206 pages of small font in a three-column format). From 80 FR 77710 December 15, 2015, at 77777-77778: United States Citizenship and Immigration Services U.S. Citizenship and Immigration Services (USCIS) administers immigration benefits and services while protecting and securing our homeland. USCIS has a strong commitment to welcoming individuals who seek entry through the U.S. immigration system, providing clear and useful information regarding the immigration process, promoting the values of citizenship, and assisting those in need of humanitarian protection. Based on a comprehensive review of the planned USCIS regulatory agenda, USCIS will promulgate several rulemakings to directly support these commitments and goals. Regulations To Facilitate Retention of High-Skilled Workers and Entrepreneurs Employment-Based Immigration Modernization. USCIS will propose to implement certain provisions of the American Competitiveness and Workforce Improvement Act of 1998 and the American Competitiveness in the Twenty-First Century Act of 2000, Public Law 106–313, as amended by the Twenty-First Century Department of Justice Appropriations Authorization Act of 2002, Public Law 107–273. USCIS will seek public feedback in codifying its interpretation of these statutes. Additionally, USCIS will propose to amend its regulations to provide greater stability and job flexibility to certain beneficiaries of approved
  2. 2. Page 2 of 4 employment-based immigrant petitions during their transition from nonimmigrant to lawful permanent residence status and to enable U.S. businesses to hire and retain highly skilled foreign-born workers. Significant Public Benefit Parole for Entrepreneurs. USCIS will propose to establish conditions for paroling foreign entrepreneurs into the United States based on case-by-case discretionary determinations that their entrepreneurial activities in the United States will provide the United States with a significant public benefit. Parole under these conditions would allow individuals who have been awarded substantial U.S. investor financing or otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting edge research to pursue development of startup businesses in the United States. This would provide an opportunity for much needed innovation and job creation in the United States. Enhancing Opportunities for High Skilled Workers. DHS will issue a final rule following its May 2014, proposed rule designed to encourage and facilitate the employment and retention of certain high-skilled and transitional workers. As proposed, the rule would amend regulations affecting high-skilled workers within the nonimmigrant classifications for specialty occupation professionals from Chile and Singapore (H–1B1) and from Australia (E–3), to include these classifications in the list of classes of aliens authorized for employment incident to status with a specific employer, to extend automatic employment authorization extensions with pending extension of stay requests, and to update filing procedures. The rule would also amend regulations regarding continued employment authorization for nonimmigrant workers in the Commonwealth of the Northern Mariana Islands (CNMI)-only Transitional Worker (CW–1) classification. Finally, the rule would amend regulations related to the immigration classification for employment-based first preference (EB–1) outstanding professors or researchers to allow the submission of comparable evidence. These changes would encourage and facilitate the employment and retention of these high-skilled workers.
  3. 3. Page 3 of 4 Improvements to the Immigration System Provisional Unlawful Presence Waivers. DHS will issue a final rule following its July 2015, proposed rule regarding the provisional unlawful presence waiver process. As proposed, this rule would expand access to the provisional unlawful presence waiver program to additional aliens for whom an immigrant visa is immediately available and who can show extreme hardship to a qualifying U.S. citizen or lawful permanent resident spouse or parent. Requirements for Filing Motions and Administrative Appeals. USCIS will propose to revise the procedural regulations governing appeals and motions to reopen or reconsider before its Administrative Appeals Office, and to require that applicants and petitioners exhaust administrative remedies before seeking judicial review of an unfavorable decision. The changes proposed by the rule will streamline the procedures before the Administrative Appeals Office and improve the efficiency of the adjudication process. Regulations Related to the Commonwealth of Northern Mariana Islands. This final rule amends DHS and Department of Justice (DOJ) regulations to comply with the Consolidated Natural Resources Act of 2008 (CNRA). The CNRA extends the immigration laws of the United States to the Consolidated Northern Mariana Islands (CNMI). In 2009, USCIS issued an interim final rule to implement conforming amendments to the DHS and DOJ regulations. This joint DHS– DOJ final rule titled ‘‘Application of Immigration Regulations to the CNMI’’ would finalize the 2009 interim final rule. Regulatory Changes Involving Humanitarian Benefits Exception to the Persecution Bar for Asylum, Refugee, or Temporary Protected Status, and Withholding of Removal. In a joint rulemaking, DHS and DOJ will propose amendments to existing DHS and DOJ regulations to resolve ambiguity in the statutory language precluding eligibility for asylum, refugee resettlement, temporary protected status, and withholding of removal of an applicant who ordered, incited, assisted, or otherwise participated in the persecution of others. The
  4. 4. Page 4 of 4 proposed rule would provide a limited exception for persecutory actions taken by the applicant under duress and would clarify the required level of the applicant’s knowledge of the persecution. ‘‘T’’ and ‘‘U’’ Nonimmigrants. USCIS plans additional regulatory initiatives related to T nonimmigrants (victims of trafficking) and U nonimmigrants (victims of criminal activity). USCIS hopes to provide greater consistency in eligibility, application, and procedural requirements for these vulnerable groups, their advocates, and the community through these regulatory initiatives. These rulemakings will contain provisions to adjust documentary requirements for this vulnerable population and provide greater clarity to the law enforcement community. Special Immigrant Juvenile Petitions. This final rule makes procedural changes and resolves interpretive issues following the amendments mandated by Congress. It will enable child aliens who have been abused, neglected, or abandoned and placed under the jurisdiction of a juvenile court or placed with an individual or entity, to obtain classification as Special Immigrant Juvenile. Such classification can regularize immigration status for these aliens and allow for adjustment of status to lawful permanent resident. See: