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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
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
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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.
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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
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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
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.