Immigration Law Insights

From regulations designed to significantly alter the H-1B program to travel and visa bans, the immigration landscape has changed at a fast and furious pace over the last four years. Many legal practitioners expect more of the same during the Biden administration. After the November elections, comprehensive immigration reform and a path to citizenship for DACA beneficiaries are suddenly back on the political agenda. Here are the top five immigration expectations employers should have over the next four years.

1. H-4 EAD is Here to Stay: Despite being in a constant state of flux over the last several years, the H-4 Employment Authorization rule finally appears safe. In 2015, the Obama Administration implemented a new rule permitting certain H-4 spouses to receive an Employment Authorization Document ("EAD"). In order to qualify for an EAD, the H-4 individual's H-18 spouse must be the beneficiary of an approved, employment-based immigrant (Green Card) petition or have been granted a special H-1B extension beyond the normal six (6) year maximum due to Green Card backlogs. Under the Biden administration, companies should be able to continue relying on the H-4 EAD workers to supplement their labor force in the future.
2. DACA Preserved (and possibly expanded): Over the past few years, the Deferred Action for Childhood Arrivals initiative has been wound down in its entirety by the Trump administration, continued by a 5-4 Supreme Court decision, and expanded by a December 2020 U.S. District Court decision to again allow for full implementation. The Biden administration has already announced plans to direct the Department of Homeland Security and the Attorney General to take action to preserve the program. The President's proposed immigration plan is also expected to include an immediate pathway to citizenship for DACA beneficiaries, including potential Green Card status after a five-year period.
3. Continued I-9 Enforcement: While the Biden administration has indicated an intent to limit ICE work-related enforcement to arrests and deportations, the change in leadership could result in a returned emphasis on I-9 worksite enforcement. The Obama administration nearly doubled I-9 audits from 2009 until 2013. The Obama administration levied millions of dollars in I-9 fines, including a settlement with retailer Abercrombie & Fitch that cost the company more than $1 million. I-9 compliance should be a top area of emphasis for employers, especially considering the relaxed rules resulting from COVID-19. Internal I-9 audits should be a priority for employees in 2021.
4. Halting H-1B "Sunset" Regulations. Over the past six months, several H-1B visa-related regulations have been implemented or put forward for implementation. These include rules that would increase the prevailing wage paid to H-1B applicants, redefining the definition of specialty occupation, and seeking to limit the placement of H-1B beneficiaries at third-party worksites. The Biden administration has announced its intent to implement a sixty-day delay on all regulations set to go into effect so they can be properly reviewed. The new H-1B rules are also likely to see scrutiny under the Congressional Review Act. Given the circumstances, it is likely none of the new rules will impact the H-1B cap filing season, which starts in March 2021.
5. Comprehensive Immigration Reform: Almost every President in the 21st century has sought to address comprehensive immigration reform. In addition to a pathway to citizenship for DACA beneficiaries, employment-based immigration reform would likely address: (1) employment-based immigrant backlogs, including a possible backlog exemption for those working in STEM fields; (2) nonimmigrant visa changes including modifications to the H-1B lottery system and expanding certain visa categories; (3) increased interior enforcement of I-9 rules; and (4) border control; President Biden has pledged to tackle comprehensive immigration reform in the proposed U.S. Citizenship Act of 2021.