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US delays H-1B visa system overhaul, F-1 student protection rules

The United States has delayed the second phase of its expected H-1B visa system overhaul to the end of the year.

The Department of Homeland Security (DHS) is gearing up to release several significant regulations, with the most anticipated being the modernization of the H-1B program. Earlier this year, U.S. Citizenship & Immigration Services ( USCIS) shifted the H-1B cap lottery to selection by beneficiary rather than registration, alongside measures to prevent fraud.

The next phase, slated for December 2024, will enhance cap-gap protections for F-1 students, revise the H-1B specialty occupation definition, expand the Fraud Detection and National Security site visit program, and ensure USCIS adjudicators defer to prior decisions.

In April 2024, DHS extended the automatic employment authorization for certain renewal applicants from 180 to 540 days. This temporary rule is under review to determine if the extension should become permanent, with a decision expected by December 2024.

Biometrics for noncitizens
DHS is also plans to broaden its authority to collect biometrics from noncitizens upon departure. Current regulations limit collection to pilot programs and certain entry points, but the upcoming December 2024 regulation will remove these restrictions and enhance photograph requirements at entry and exit.

Expansion of the H-1B/L-1 border security fee

The H-1B/L-1 border security fee is also expected to be expanded in the coming months. Currently, large employers must pay additional fees for initial H-1B or L-1 status grants or changes of employer. The new rule, set for April 2025, will extend these fees to stay extensions filed by such employers.

Adjustment of status process improvements
Further improvements are anticipated for the adjustment of status process, including clarifications on visa availability under the Child Status Protection Act, employment authorization for certain derivative beneficiaries, and travel authorization for Temporary Protected Status holders. This regulation is expected in August 2024.

Additionally, DHS plans to update the International Entrepreneur Parole Program's investment and revenue minimums by August 2024 and propose regulations to enhance employment authorization for dependent spouses, increase flexibilities for nonimmigrants, and improve EAD policies by January 2025.

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