Immigration Law Insights

Last month, President Joe Biden (“President Biden”) wrapped up his first 100 days as President of the United States – focusing on a myriad of issues from the Coronavirus pandemic (“COVID-19”) to America’s immigration system. Inasmuch as immigration affairs remained at the forefront under the previous administration, America’s immigration system continues to be a pressing topic for the Biden administration. President Biden has taken various actions and positions on key immigration issues, many of which could significantly impact businesses that regularly employ foreign nationals.

Public Charge Regulations

Under the so-called “Public Charge Rule,” foreign nationals who are likely to become a public charge are considered inadmissible to the United States and ineligible to become a lawful permanent resident (more commonly known as a Green Card holder).  The Trump administration expanded the federal government’s interpretation of the Public Charge Rule to make foreign nationals that received one or more public benefits for more than twelve months within any thirty-six-month period inadmissible.  Under the new interpretation, foreign nationals applying for a Green Card were required to submit significant personal financial documentation, which resulted in longer benefit processing times.

On February 2, 2021, President Biden issued an executive order requiring the Secretary of State, the Attorney General, and the Secretary of Homeland Security, as well as heads of other relevant agencies, to conduct a review of all agency actions related to the implementation of the so-called “Public Charge” ground for inadmissibility.  As part of that review, the administration determined it would no longer fight a prior court decision that invalidated the Trump administration’s interpretation of the Public Charge Rule.  As a result, the court decision went into effect and USCIS announced it would apply the prior Public Charge Rule interpretation going forward.  Employers can expect a more simplified Green Card process in the future and the possibility of decreased processing times.

Issuance of U.S. Visas at Consulates and Embassies Worldwide

In 2020, the Trump administration issued Presidential Proclamations 10014, 10052, and 10131 suspending entry of certain immigrants and nonimmigrants, with the intent of protecting American workers searching for jobs during the economic recovery from COVID-19. As a result, the issuance of many employment-based visas from U.S. Consulates and Embassies around the world were put on hold.

On February 24, 2021, President Biden issued Proclamation 10149, which removed Proclamation 10014 and allowed for the continued issuance of certain immigrant visas. The administration also permitted Presidential Proclamation 10052 to expire on March 31, 2021, ending the restrictions on the issuance of many new H-1B, H-2B, J-1, and L-1 visas.  Employers are still likely to see delays at the U.S. Consulates and Embassies, however, due to both backlogs of individuals applying for the previously restricted visa types and the continuing COVID-19 limitations on interviews.

Wage-Based Selection Process for H-1Bs/New Prevailing Wage Rule

On January 8, 2021, the Department of Homeland Security published a final rule, which modified the registration requirement for petitioners seeking to file Cap-Subject H-1B Petitions. The final rule would essentially replace the current random selection process with a wage-based selection process – prioritizing the H-1B registrations for employers that pay the highest wages. The final rule was originally set to become effective on March 9, 2021, before this year’s H-1B lottery selection. However, the Department of Homeland Security delayed the effective date until December 31, 2021, reasoning USCIS would not have adequate time to complete system development and testing as well as train staff.  It remains to be seen whether the new selection process, or some variation thereof, will go into effect in 2022.

The Biden administration has also delayed a Department of Labor (“DOL”) regulation that would significantly increase the wages employers are required to pay their H-1B employees.  The rule was originally set to be implemented in mid-March, but has since been delayed several times.  Most recently, DOL proposed to delay implementation until November 2022.   For now, the H-1B program appears likely to remain in its current form for at least another H-1B filing season.

Preservation of DACA

In 2012, the Obama administration established Deferred Action for Childhood Arrivals, commonly referred to as “DACA”, which was created to benefit so-called “Dreamers” who entered the United States unlawfully as children. In 2017, the Trump administration announced its plan to phase out the DACA program, as it would no longer accept new applications. On January 20, 2021, President Biden issued a memorandum directing the Secretary of Homeland Security, in consultation with the Attorney General, to take all actions appropriate and consistent under the law to preserve and fortify DACA.

USCIS Reinstitutes “Prior Deference Memo”

Historically, USCIS has directed immigration officers to defer to prior nonimmigrant visa petition approvals when considering extension requests.  In 2017, USCIS shifted its stance and directed adjudicators not to defer to prior petition approvals, even in instances where there was no material change to conditions of employment.  The policy change resulted in a significant increase in requests for additional evidence and led to uncertainty as to whether employers might be able to continue to employ certain specialized foreign national workers.

The Biden administration recently reinstituted the policy on deference to prior adjudications, which should result in quicker and less costly decisions for employers on employment-based visa extension petitions.