January 22, 2021
Transcending BordersSM
We officially made it out of 2020 and what a year it was. As 2021 rolls in, immigration advocates around the country were uplifted to learn of President Biden’s plans for an immigration overhaul as one of his first priorities after taking office. In this issue of Transcending BordersSM, we outline President Biden’s proposed plan to reform U.S. immigration. To understand just how daunting the Biden Administration’s task will be, we also summarize the magnitude of restrictions imposed in the 400+ immigration policy changes enacted under Trump’s presidency. 

  • Biden’s Immigration Overhaul
  • Biden White House issues regulatory freeze, staying worrisome H-1B regulations.
  • How did Trump leave the U.S. immigration System?
  • Reminder: H-1B Cap FY 2022
  • GYH’s 2020 Highlights
Biden Plans to Launch Immigration Overhaul 

President Joe Biden unveiled a sweeping overhaul of U.S. immigration law shortly after taking office Wednesday, January 20, 2021. Biden’s plan, entitled the “U.S. Citizenship Act of 2021,” includes an eight-year pathway to citizenship for immigrants without legal status, expanded refugee admissions, bolstered employment-based and family-based visas, enhanced technology at the border and more.

In stark contrast to Trump policies, Biden’s legislative proposal focuses on addressing the root causes of migration from Central America, a cause Biden worked to address as Vice President. The Biden immigration plan reportedly has three pillars: addressing the causes of migration, managing the border, and creating a path to citizenship.

The proposed path to citizenship, a central tenet of Biden’s plan, would put qualifying immigrants in a temporary status for five years and grant them a green card once they meet certain requirements (i.e. pay taxes, background check). After three years with a green card, an immigrant would be eligible to apply for citizenship. To avoid a rush at the border, eligible immigrants must have been in the United States as of January 1, 2021.
Other provisions in the Biden proposal include:
Biden White House issues regulatory freeze, staying worrisome H-1B regulations.

The Biden administration is already taking steps to unravel the jumble of employment-based immigration changes launched under Trump’s presidency. In the Trump Administration’s final days, it rushed to push forward a flurry of regulations that would have had tremendous impact on the H-1B visa program, among many others. On Biden’s first day in office, January 20th, the White House issued a memorandum directing that:

  • All rules pending at the Federal Register that are unpublished must be immediately withdrawn.
  • Agencies consider postponing the effective dates for regulations that have been published, but are not yet in effect, for 60 days, starting January 20th.

As a result of the memorandum, the modified version of USCIS’s "Strengthening the H-1B Nonimmigrant Visa Classification Program" – which would have narrowly changed the way the agency determines what qualifies as an “employer-employee relationship” – will be withdrawn. The H-1B wage selection Final Rule, which was published but has not yet taken effect, may upon further agency action be postponed until March 21, 2021.

Further, since two Department of Labor (DOL) bulletins clarifying filing requirements for LCAs by secondary employers and on H-1B program obligations for common-law employers published on January 15, 2021, rely on the finalization of the DHS Rule, it is likely that they will be withdrawn as well.

We will keep you updated as developments arise.
How did Trump leave the U.S. Immigration System? 

In the new year we look forward to less-restrictive immigration policies likely to be enacted by the Biden administration. However, the new year also signifies a time of reflection. President Trump issued more than 400 executive actions in order to limit immigration. These changes, compounded by the instability caused by COVID-19, have created a myriad of challenges for immigrants, their families, communities, employers, and immigration advocates. We highlight a few challenges below.

The Trump administration sought to make it significantly harder to obtain a positive adjudication of nonimmigrant visas, as demonstrated through an increase in denials and Requests for Evidence (RFE) rates. For instance, USCIS’ denial rate for I-129 petitions, the form submitted by U.S. employers who wish to sponsor a foreign national for temporary employment in the U.S., has doubled since FY2016, from 7% to nearly 15%. Similarly, USCIS’ rate of issuing RFEs also nearly doubled since FY 2016, from 22.1% to 40%, making it even more time consuming and costly to petition foreign workers. While the denial and RFE rate held somewhat steady since FY 2018, this is widely seen as a result of petitioners and immigration firms adapting and creating successful strategies, such as the implementation of additional specialty occupation evidence to H-1B petitions, to overcome higher levels of scrutiny from USCIS. Read more...
Reminder – H-1B Cap FY 2022
It’s time to prepare for the fiscal year 2022 H-1B cap visa lottery. Generally, this applies to any non-exempt employer who would like to sponsor a foreign national who has never held H-1B status.

What you can do now:

  • Review your roster of foreign national employees – focusing on:
  • Any employees with CPT or OPT (even if they have a year or two of STEM OPT left, we recommend applying annually to get the most “bites at the apple”)
  • Any employees in other non-immigrant statuses that expire before 10/1/2022 (which will be your next opportunity to sponsor cap-subject H1Bs)
  • Any former employees you would like to bring back/ potential new hires

Contact our firm (sooner is better) before 1/31/2021 for a complimentary 15-minute consultation to discuss next steps.