Regulatory and Legislative Developments

President Biden Nominates Julie Su for Secretary of Labor

On February 28, 2023, President Joe Biden nominated current Deputy Secretary Julie Su for the position of Secretary of Labor. If confirmed, Su would replace Marty Walsh, who will lead the National Hockey League Players union.

Before moving to Washington, Su served seven years as California’s Secretary of Labor. She enjoys strong support from unions and worker groups. However, during her California tenure, she was criticized for problems with the unemployment compensation program during the height of the COVID-19 pandemic. Businesses also expressed concern with her implementation of California’s gig worker policy.

The Senate HELP Committee will soon hold a hearing on Su’s nomination; Republican opposition is expected. TechServe’s Government Affairs Team will continue to follow developments.

USCIS Updates Policy Manual on “Age-Out” Calculation to Benefit Some H-1B Dependents

Regulatory Change and Legislation Could Provide Broader, Permanent Fix

The United States Citizenship and Immigration Services (USCIS), on February 14, 2023, updated its policy manual to prevent many dependents of H-1B visa beneficiaries from “aging out” in their quest for a green card through their parents’ adjustment of status application. Dependents of non-immigrant visa holders, sometimes referred to as “Documented Dreamers,” age out at 21 and may be disadvantaged in the process based on which State Department Visa Chart USCIS uses to establish eligibility.

As of February 14, 2023, USCIS announced it would use the “Dates for Filing” chart instead of the “Final Action Date” chart to determine adjudication status. Uncertainty resulted because neither the statute nor regulations define when a visa becomes available for purposes of the Child Status Protection Act (CSPA) age calculation. Furthermore, there are no precedent federal court decisions nor published administrative decisions on the issue.

This incremental change is significant because company mission-critical H-1B visa workers may choose to leave the country if their aged-out children are forced to self-deport.

Responding to impacted constituents and businesses, Congresswomen Deborah Ross (D-NC) and Ami Bera (D-CA) authored a June 2021 letter to USCIS signed by 35 colleagues urging agency action to protect “Documented Dreamers.” In addition, the House of Representatives in July 2022 passed a bipartisan amendment to add several provisions protecting these children to the National Defense Authorization Act. The effort, led by Representatives Ross, Zoe Lofgren (D-CA), and Mariannette Miller-Meeks (R-IA), hit a roadblock in the Senate and was not included in the final legislation.

Representative Ross, who serves on the House Judiciary Immigration Subcommittee, commented on USCIS’s policy manual update:

“I am grateful that USCIS has taken action to protect some of the 200,000 Documented Dreamers who call the United States home,” said Congresswoman Ross“This is an important step forward that will protect many individuals who contribute to our country and economy every single day, but we cannot stop here. We must pass my bipartisan America’s CHILDREN Act to provide a pathway to citizenship for these inspiring young people and finally give them the certainty they deserve. I will not stop fighting for a solution.”

Next Steps: Regulatory or Legislative Action

The USCIS policy manual change will not shield all children from aging out; a change in regulations or law is needed. The Department of Homeland Security projects a Notice of Proposed Rulemaking as early as July 2023 on “Improving the Regulations Governing the Adjustment of Status to Lawful Permanent Residence and Related Immigration Benefits.” This NPRM would propose adjustments in the age calculation under the CSPA and several other changes.

In addition to a possible regulatory solution, Representative Ross will likely reintroduce America’s CHILDEN Act. During the 117th Congress, Representatives Ross, Raja Krishnamoorthi (D-IL) and Young Kim (R-CA) introduced the bill, H.R. 4331; Senators Alex Padilla (D-CA) and Rand Paul (R-KY) sponsored its companion, S. 2753. Provisions would:

  • “Provide a pathway to permanent residency for individuals who were brought to the United States as dependent children of workers admitted under approved employer petitions, have maintained status in the United States for 10 years (including four years as a dependent), and have graduated from an institution of higher education;
  • Establish age-out protections that lock in a child’s age on the date on which they file for a green card rather than the final action date; and
  • Provide work authorization for Documented Dreamers over 16 whose green card applications are pending.”

The following article provides additional information on the USCIS policy manual changes:

Fragoman, “USCIS Revises Child Age-Out Calculation Policy to Benefit Some Adjustment of Status Applicants,” February 15, 2023.

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