President-elect Joe Biden’s administration will inherit the Trump administration’s restrictive immigration policies and regulations. During President Trump’s tenure, he has overseen more than 400 immigration policy changes – the overall effect of which has made it more difficult, more expensive, more cumbersome and more restrictive for U.S. employers to hire foreign national talent. How will the next administration shift policies from its predecessor? President-Elect Biden’s website proclaims: “Immigration is essential to who we are as a nation, our core values, and our aspirations for our future… The United States deserves an immigration policy that reflects our highest values as a nation.”
President-elect Biden has promised swift change, but it will not be easy. Some of the early changes in immigration law we expect to see from his administration are:
- First 100 Days: An About Face
Certain elements of a Biden immigration agenda will be achieved through presidential memos, proclamations and executive orders.
For example, Biden has promised to eliminate the travel ban against Muslim majority countries and reinstate the Obama-era Deferred Action for Childhood Arrivals (DACA) program, which allows undocumented people who came to the country as children to stay and work.
Beneficiaries of DACA are viewed sympathetically by the American public. These individuals have graduated from American high schools, many from American colleges, and have been in the U.S. since they were very young. Employers have come to rely on hundreds of thousands of these young people in the workforce, and legislation protecting these immigrants have gained bipartisan support in Congress.
- Changes to Employment-Based Immigration Policy
We suggest, and expect, that the Biden administration will seek to have a positive impact on employers by taking up the following issues:
a. Reforming the H-1B visa program: According to his website, President-elect Biden would like to increase the number of H-1B visas available each year. He promises to work with Congress to reform the H-1B visa program to better align with the needs of the labor market.
President Trump enacted restrictive changes to the H-1B program, which has included changing the definition of “specialty occupation,” significantly increasing the minimum prevailing wages for H-1B workers, and awarding H-1B visas based on offered salary. These rules aim to restrict H-1B visas to the most highly-skilled workers and raises each wage level significantly[1]. The Biden administration will likely reverse some Trump-era policies related to H-1B visas to re-instate market-based considerations aimed at meeting shortages within the U.S. workforce and allowing U.S. employers to continue to rely on foreign national talent when they seek to do so.
b. USCIS application process streamlined: In the early months of the Biden administration, we expect to see USCIS rescind policy memoranda that have slowed processing times, increased burdensome and unjustified “requests for evidence” pushback, and made it more difficult to gain approval of previously approved applications. For example, in 2017, the Trump administration rescinded a long-standing memorandum that allowed for consideration of precedence in adjudicating certain petitions and applications. Since 2017, notwithstanding the fact that an employer is filing a second or third extension on a petition where no changes have been made, USCIS now considers each subsequent petition with de novo review (as if the government has never considered the petition before). Under the current policy, while adjudicators may ultimately reach the same conclusion as in a prior decision, they are not compelled to do so as a default starting point as the burden of proof to establish eligibility for an immigration benefit always lies with the petitioner (employer).
c. Reducing backlogs for employment-based green cards: Due to an annual cap of 140,000 green cards, some foreign nationals must wait 10 or more years before they can receive their employment-based green card, depending on their country of birth. President-elect Biden should reduce this backlog by:
- Increasing the number of employment-based green cards available each year and allowing for temporary reductions in that number when the U.S. faces high unemployment.
- Exempting recent Ph.D. graduates from U.S. academic programs in STEM from the cap if they are likely to make important contributions.
- Or, even consider awarding a green card to all foreign graduates of U.S. doctoral programs along with their degree.
d. Ensure efficient processing of work permits and employment authorization verification: USCIS should ensure faster processing of employment authorization documents as significant detrimental consequences result from not having a work permit or when a gap is created between periods of authorization. Moreover, DHS should modernize and simplify the employment verification process to reflect technological advancements and the realities of today’s business operations, particularly in light of COVID-19, to more efficiently onboard all workers.
We expect these changes are only the beginning of other procedural and structural changes to the employment-based immigration system. We will continue to stay up-to-date with the changes to come beginning in early 2021.
If you have any questions, please reach out to your primary Hahn Loeser attorney, or contact a member of our Immigration Practice Group listed below.
[1] On December 1, 2020, the U.S. District Court for the Northern District of California blocked the DHS and DOL H-1B wage rules by setting aside the DHS interim final rule, finding that defendants “failed to show there was good cause to dispense with the rational and thoughtful discourse that is provided by the APA’s notice and comment requirements,” (Chamber of Commerce, et al., v. DHS, et al., 12/1/20).
