Management Update

President Biden's Day 1 Executive Orders and the Future for H-1B Visas

By: Rachael Jeanfreau and Philip Giorlando

President Biden, on his first day in office, signaled his stance on immigration by issuing multiple executive orders that directly impacted the immigration law landscape, especially for employment-based visas previously limited by the Trump Administration.

Several of these orders involved areas outside of employment-based immigration, such as preservation of the Deferred Action for Childhood Arrivals (“DACA”) Program, the end to the ban on individuals from certain Muslim-majority countries, and reallocating funds previously set aside for the border wall.

Regarding employment-based visas, Biden ordered Federal agencies to consider freezing all regulations and rules issued by the Trump Administration that were not finalized prior to his inauguration on January 20th. One such Trump Administration regulation sought to change the registration system and prioritization of H-1B petitions subject to the 65,000 cap on H-1B visas each fiscal year (October 1st to September 30th). This regulation would have replaced the current H-1B lottery process with a process to prioritize employers offering a higher salary to the foreign worker, so that those employers offering the highest wages to the foreign worker would have an advantage. This rule, intended to go into effect on March 14, 2021, will likely be paused under Biden’s order.

Although Biden’s order would pause this Trump Administration regulation, Biden’s immigration reform plan will likely incorporate some aspects of this regulation because Biden’s plan includes overhauling the H-1B visa selection process to create a more predictable process for employers and foreign workers. The “lottery” system currently in place, as the name suggests, provides little guarantee of success for those who apply for a visa. To increase predictability, Biden’s proposal would give priority to H-1B applications based on the wage level offered to the foreign worker, albeit not as high as the Trump Administration’s proposed rule. Biden’s plan would also include an increase in the number of H-1B visas available for petitioners.

Regarding employment-based “green cards,” Biden intends to eliminate the 7% per-country allotment of green cards each year. The per-country limit was designed to prevent one country from dominating the flow of employment-based immigration to the United States. This per-country limit severely impacts countries like India, where there is a decade-long waiting period for Indian nationals intending to become permanent residents while working in the U.S. on an H-1B visa. The argument for now removing the per-country limit is that it has prevented U.S. employers from retaining the employees they need to remain competitive.

Biden’s proposal would also exempt individuals with doctoral degrees in STEM fields from U.S. universities from annual caps on H-1B visas. This would have a two-fold effect. First, it would increase the number of foreign students applying to U.S. universities, which would provide much needed financial support for colleges and universities. Second, it would encourage the most intellectually advanced foreign nationals to come to work in the United States.

All of these changes, which will likely lead to an overall increase in the accessibility of H-1B visas, is good news for the many companies that are becoming more digitized as a side-effect of the COVID-19 pandemic. IT workers make up the largest percentage of H-1B visas, and they are in higher demand as businesses increase their dependence on technology due to an increase in employees working from home.

As the new Biden Administration continues to change the employment-based immigration domain, we will continue to monitor and report on impacts to employers. Employers should remain aware of this rapidly evolving area of Federal law and those intending to pursue employment-based visas should remain hopeful that increased access to foreign workers may be on the horizon.

A Quick Overview of President Biden's Employment-Related Executive Orders to Date

By: Jerry L. Stovall, Jr.

Since being sworn in on January 20, President Biden has issued a number of employment-related Executive Orders, with more to come. This is a brief summary of some of them.

1. Fighting Discrimination on the Basis of Gender Identity or Sexual Orientation

This EO expands federal protections against discrimination based on sexual orientation and gender identity. The Order instructs federal agencies to interpret all federal anti-discrimination statutes prohibiting sex discrimination in a manner to also protect against discrimination based on sexual orientation, gender identity, and gender expression.

2. Economic Relief Related to the COVID-19 Pandemic

In this EO the President directed the U.S. Department of Labor to consider clarifying that workers may refuse employment that will jeopardize their health or the health of someone else in their household yet still qualify to receive unemployment insurance benefits. This will obviously have the potential to encourage employees to refuse to report to work out of fear for their health or that of members of their households. This is yet another reason that employers should closely follow, and be able to prove that they are following, the CDC's guidance on limiting COVID-19 exposure in the workplace.

3. Protecting the Federal Workforce and Requiring Mask-Wearing

This EO requires federal employers to require on-duty federal employees, on-site federal contractors, and all persons in federal buildings or on federal lands to comply with CDC guidelines regarding face coverings, physical distancing, and other public health measures.

This EO also directs the Department of Health and Human Services to encourage mask-wearing across the country and create incentives for mask-wearing.

4. OSHA Mandates.

This EO requires the U.S Department of Labor to take several, significant actions. By February 4, 2021, the U.S. Department of Labor must:

issue revised guidelines on workplace safety during the COVID-19 pandemic;
consider whether mandatory emergency measures are necessary, such as mask-wearing in the workplace and if so, issue them by March 15, 2021;
review the COVID-19 enforcement efforts of the Occupational Safety and Health Administration (OSHA) and identify any short-, medium-, and long-term changes;
launch a national program through OSHA to focus on enforcement of the most serious violations that put the largest number of workers at serious risk or are contrary to anti-retaliation principles; and
create a multilingual outreach campaign to inform workers and their representatives (including labor unions) of their rights, with a focus on communities hit hardest by the pandemic.

5. Advancing Racial Equity and Support for Underserved Communities Through the Federal Government

The stated purpose of this EO is to improve opportunities for historically underserved communities. The Order requires all federal agencies to review internal equity and to deliver an action plan within 200 days, addressing unequal barriers to opportunity found within each agency's policies and programs. This Order also revokes former President Trump's Order limiting the implementation of diversity and inclusion training for federal government employees and contractors. Federal contractors should anticipate the federal government to implement requirements that they implement such training in the near future.

6. Protecting the Federal Workforce

This EO restores federal employees' collective bargaining power and protections. The Order directs federal agencies to "bargain over permissible, non-mandatory subjects of bargaining when contracts are up for negotiation," and requires the Office of Personnel Management to provide a report to the President with recommendations "to promote a $15/hour minimum wage for federal employees."

New Administration Freezes Proposed and Pending Regulations

On the first day of the new administration, President Biden's chief of staff, Ronald Klain sent a letter to the leaders of federal departments and agencies. In this letter, he asked all federal agencies to freeze proposed regulations and those with pending effective dates—which includes several workplace rules. The president's appointees should "have the opportunity to review any new or pending rule." Regulatory freezes are common in new administrations. Employers should wait and see what guidance the Biden DOL publishes before making any changes to their business arrangements.

Congress’ COVID-Relief Package Bill

By: Fred Preis, Rachael Jeanfreau, and Philip Giorlando

On Monday, December 21, 2020, Congress passed a $2.3 trillion COVID-relief package. The President signed the COVID-relief package on December 27, 2020, enacting the bill into law. The relief package provides several major benefits to small businesses and individuals in response to the ongoing COVID-19 crisis.

The relief package revives aspects of the CARES Act to aid small businesses. It renews the Payroll Protection Program for small businesses with 300 or fewer employees, providing additional loan opportunities for businesses, provided that the loans go to paying their employees. The Payroll Protection Program runs through March 31, 2021. It also expands the forgivable expenses under the Payroll Protection Program to include supplier costs, investments in facility modifications, and personal protective equipment. It is worth noting that, while the Payroll Protection Program was helpful for some industries that were able to provide services throughout the pandemic, other industries, like the hospitality industry, did not benefit as substantially from the Payroll Protection Program because there was not enough work for employees, even if their payroll was protected. So, it is likely that this revival of the Payroll Protection Program will only help certain industries able to continue providing services during the pandemic.

The relief package also provides unemployment assistance. It extends the time period for all pandemic unemployment insurance programs until March 14, 2021. It also increases the unemployment insurance benefits by $300 per week. This increase would raise Louisiana’s unemployment insurance amount to $547. The relief package also provides $1 billion to States for technology modernization and fraud prevention within their unemployment insurance systems. This $300 increase in unemployment insurance is half of the previous unemployment insurance increase at the start of the pandemic, which received criticism from business owners who were unable to convince employees to return to work because some employees made more money on unemployment than they did in their positions prior to the pandemic.

In addition to unemployment, the relief package provides individual income assistance by providing a direct stimulus check of $600 for each adult and child, with this amount decreasing for individuals with over $75,000 in income and couples with over $150,000 in income. This benefit has received criticism from members of both sides of the political spectrum. Although the President criticized this $600 amount as too low, he conceded and signed the bill into law on December 27^th.

Some areas that were expected to be addressed are not in the current relief package. The COVID-relief package did not extend the Families First Coronavirus Response Act, which expired on December 31, 2020. However, the relief package extends the payroll tax credits to employers if they voluntarily provide paid leave to their employees for reasons covered by the FFCRA. This extension of the payroll tax credit expires on March 31, 2021. Also, the relief package does not include additional protections for employers regarding liability for potential claims of COVID-19 exposure from customers or employees. A limited immunity from liability for COVID-19 exposure claims was initially discussed by Congress, however, it is not likely that the incoming Executive Administration would consider such a provision.

The major aspects of this bill, including the Payroll Protection Program and payroll tax credit extensions, are set to expire on March 31, 2021. It is very likely that the incoming White House Administration will have more on its legislative agenda in response to COVID-19. Breazeale, Sachse, and Wilson will continue to watch for developments of Federal COVID-19 relief. Employers should continue to follow the Federal government’s response to COVID-19 and anticipate additional changes shortly after the new White House Administration steps in on January 21st.