The First 100 Days: President Biden’s Employment-Based Immigration Agenda

Roy Maurer By Roy Maurer April 8, 2021
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President Joe Biden

​President Joe Biden has "hit the ground running" as he directs changes to the U.S. immigration system in his first 100 days in office, said Cynthia Lange, senior counsel in the San Francisco office of global immigration law firm Fragomen.

Lange was speaking at the Society for Human Resource Management Employment Law & Compliance Conference on April 7.

She said "Biden wants to change the narrative on immigration" by modernizing the immigration system, being more welcoming to immigrants and tackling the root causes that lead people to come to the U.S. without legal status.

Biden delivered on a promise to introduce comprehensive reform legislation to Congress in February. "The bill is far-reaching and includes legalizing undocumented groups," Lange said. "But as we all know, it's very hard to get bills through Congress. The president has much more authority to make policy and administrative changes. He also can take executive action."

Like his predecessors, Biden has issued a number of executive orders since he took office, including directing federal agencies to conduct a comprehensive review of immigration policies introduced during President Donald Trump's administration.

Regulatory Freeze

The White House asked federal agencies to pause and review the regulatory process on all pending rules soon after the presidential inauguration, as is typical of incoming administrations. The request included:

  • Delaying published rules that haven't taken effect. Those include the H‑1B cap allocation final rule eliminating the annual H‑1B visa lottery and the Department of Labor's final rule on prevailing wages for H‑1B visas.
  • Withdrawing rules that had not been published. The expected rule redefining the H‑1B employer-employee relationship was an example of this.
  • Discarding rules in the planning stages. For instance, the White House sent notice Jan. 25 that the Trump administration's planned rule to rescind work authorization for the spouses of H‑1B workers with approved employment-based green cards will not take effect. The rollback of work authorization for tens of thousands of H‑4 visa holders—first discussed in 2017—was under review at the White House Office of Management and Budget, but details of the proposal were never made public. "It has been put to rest, with nothing to undo, because it was never proposed," Lange said.

She said the Biden administration has also undertaken a comprehensive review of his predecessor's immigration policies related to the adjudication of petitions and fee increases.

"This type of review is greatly needed after the changes of the last four years," she said. "Employers know that over the last four years, there was a dramatic increase in denials of work visas and challenges to cases filed with the government, causing significant delays and hardships to both organizations and workers."

She noted that employers should continue to expect a high number of requests for evidence and visa denials because it will take some time for new adjudication guidelines to take effect.

Employers can feel more secure that computer programmers qualify for H‑1B visas, however, following the rescission of a 2017 policy that increased scrutiny of these roles. On Feb. 3, U.S. Citizenship and Immigration Services (USCIS) rescinded a memo issued during the Trump administration that gave USCIS officers more discretion to require additional proof that entry-level computer programming jobs qualify as a specialty occupation—a basic requirement for receiving an H‑1B visa.

Revoking Travel Restrictions

On his first day in office, Biden signed an executive order ending the travel restrictions on 13 countries that were deemed to have failed to meet U.S. security and information-sharing standards. The State Department was directed to resume visa processing for the affected countries: Eritrea, Iran, Kyrgyzstan, Libya, Myanmar, Nigeria, North Korea, Somalia, Sudan, Syria, Tanzania, Venezuela and Yemen. The travel restrictions first went into effect in January 2017 and became one of Trump's signature immigration policies.

That doesn't mean it will be easy to travel to the U.S. however, Lange said. That's because the president decided to keep COVID‑19-related public health bans in place for Brazil, China, the European Schengen countries, South Africa and the United Kingdom. Land crossings between the U.S., Canada and Mexico will also remain closed to all but essential travel for now.

In addition, passengers departing from any foreign country and traveling to the U.S. must have received a negative COVID‑19 test result within three calendar days prior to departure, Lange said.

Biden ended a separate ban the Trump administration implemented in April 2020 on green card processing from abroad. Biden challenged Trump's claims that the ban was needed to protect U.S. jobs during the pandemic. Most employment-based green card cases are processed from within the U.S. and were not included in the ban.

A travel ban on foreign guest workers was allowed to expire on March 31. Trump first issued the ban in June 2020 and renewed it through the end of March before he left office, saying it was necessary to protect U.S. workers amid high unemployment during the COVID‑19 pandemic. The order froze access to new H‑1B visas from abroad used by professional and technology workers; H‑4 visas awarded to the spouses of H‑1B holders; H‑2B visas used by seasonal workers in landscaping and hospitality; L‑1 visas for executives and managers transferred within companies; and J‑1 visas issued to interns, trainees or people on work-study summer programs.

Legal experts commented that while the directive created uncertainty, like the ban on green cards from abroad, there wasn't much practical effect for employers due to several exemptions, consular operations being shut down around the world, and that the overwhelming majority of H‑1B visas are filed as a change of status in the U.S. and don't originate overseas.

Lange said current consular operations are still significantly reduced worldwide, and large visa backlogs exist due to the consular closures and travel bans.

"Consulates are beginning to open up again, but there is still a lot of demand," she said. "Applicants will probably encounter delays in scheduling visa appointments."

Legislative Outlook: Comprehensive Reform

Biden has proposed the most ambitious immigration legislation in decades, Lange said.

The U.S. Citizenship Act of 2021 would create a pathway to citizenship for the roughly 10 million to 12 million undocumented immigrants living in the U.S., offering expedited green card eligibility to "Dreamers"—undocumented immigrants brought into the country as children—as well as to immigrants under temporary protected status and farmworkers.

The bill would also attempt to clear the employment-based visa backlog, eliminate per-country visa caps for green cards, codify work authorization for the spouses of H‑1B visa holders, incentivize higher wages for H‑1B workers so as not to displace U.S. workers and encourage ways to improve the employment verification process.

"The bill is viewed as a starting point; no one believes that in the current climate that it will pass in its entirety," Lange said. "It is more likely that some provisions in the bill may pass as smaller bills."

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