Biden Administration Plans Big Changes to H-1B Program
Immigration agenda also includes premium processing expansion, effort to preserve DACA
The Biden administration's first published regulatory agenda—announcing agency rulemaking priorities for the remainder of the year—reveals substantive changes to the H-1B visa program for high-skilled workers.
U.S. Citizenship and Immigration Services (USCIS) is planning to amend the H-1B program by redefining the employer/employee relationship, clarifying when USCIS must be notified about a change in H-1B employment and establishing rules for employer site visits, while the Department of Labor (DOL) is going ahead with a Trump-era proposal to increase prevailing wages for the H-1B and PERM (employment-based green card visa) programs.
USCIS also plans to finalize a regulation broadening premium processing to additional employment-based immigration categories and issue new regulations "to preserve and fortify" the Deferred Action for Childhood Arrivals (DACA) program, which was recently ruled unlawful by a district court judge.
We've rounded up resources and articles from SHRM Online to provide context.
Another Look at the H-1B Wage Rule
A final rule raising wages for workers with H-1B visas and employment-based green cards had been scheduled to take effect on Nov. 14, 2022. The rule was issued in January 2021 as one of the last regulatory actions of the Trump administration. However, a federal court in June vacated the regulation, with DOL consent.
The agency is now expected to put forth a new prevailing wage rule, taking into consideration the feedback it received in a request for public comments conducted this spring. Publication of the proposal is slated for November.
Preserving DACA
The Biden administration is working on a regulation to codify a DACA-like program in the coming months, reflecting the president's vow to preserve the program after a federal judge in Texas ruled it to be illegal.
The DACA program protects young undocumented immigrants brought to the country as children from deportation and grants them work authorization. The judge and other legal experts believe that the executive branch does not have the power to grant mass reprieves to immigrants who are in the U.S. without authorization and that former President Barack Obama exceeded his powers when he created the program in 2012 by executive action, bypassing Congress.
The district court ruling barred the Biden administration from approving new DACA applications, but the judge stayed the immediate effect on current DACA recipients, citing their longtime reliance on the program. Separately, there are bills pending in Congress seeking to create a legislative solution for DACA beneficiaries.
The First 100 Days
Biden "hit the ground running" as he directed changes to the U.S. immigration system in his first 100 days in office, immigration experts have said.
Like his predecessors, Biden issued a number of executive orders since he took office, including directing federal agencies to conduct a comprehensive review of immigration policies introduced during the Trump administration.
Immigration Plan Legalizes Millions of Workers
Biden unveiled legislation Jan. 20 that would create a pathway to citizenship for the roughly 10 million to 12 million undocumented immigrants living in the United States.
The U.S. Citizenship Act of 2021 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 expansive proposal, which would need to be approved by Congress, is the most sweeping immigration reform package introduced since 2013.
[Want to learn more about employment-based immigration? Join us at the SHRM Annual Conference & Expo 2021, taking place Sept. 9-12 in Las Vegas and virtually.]
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