From day one, the Biden-Harris administration has moved decisively on immigration reform measures. The actions taken to date include both measures intended to reverse restrictive Trump-era immigration policy and regulatory changes, as well as broadscale legislative immigration reform. These significant steps stand to impact all facets of US immigration law and policy—including humanitarian, family, and employment immigration.
The following highlights some of the most important early developments as the new administration works to navigate the thorny area of immigration policy. We focus on the areas of greatest concern to employers, but note that, employers are impacted by more than employment-based immigration policy. Depending upon the makeup of their workforce and the needs of their businesses, employers are commonly affected by foreign student program policies, humanitarian programs, such as Deferred Action for Childhood Arrivals (DACA or DREAMers), and family reunification benefit options.
Executive Orders, Proclamations, and Policies: Immediate Effect
In a step that clearly telegraphed the importance of immigration reform to the new administration, President Biden issued a series of Executive Orders, Proclamations, and immigration directives on his first day in office. These significant steps, in large part, lay the groundwork for the Biden-Harris administration's longer-term immigration reform plans. These actions, which are only the first of the planned initiatives, include:
Termination of the Muslim and African Ban
As has been widely reported, President Biden rescinded the Trump administration's highly controversial Executive Orders, commonly referred to as the "Muslim Ban." This ban was expanded in early 2020 to include several African countries, among others. The final version of this ban prohibited or severely restricted immigration from thirteen countries: Iran, Libya, Somalia, Syria, Yemen, North Korea, Venezuela, Myanmar, Eritrea, Kyrgyzstan, Nigeria, Sudan, and Tanzania. The US Department of State (DOS) has issued initial instructions on the processing of visa applications impacted by the prior suspensions in an effort to remedy the consequences to the subjects of the bans and their families, which can be read here. The administration is also taking steps to prevent future presidents from exercising their authority in a similar manner. The administration's legislative proposal includes prohibitions against religious discrimination in the context of immigration benefits. It also would restrict the president's power to unilaterally suspend immigration through executive orders.
DACA Safeguards for DREAMers
President Biden issued a memo ordering the Department of Homeland Security (DHS) to take the actions needed to safeguard the DACA program. This program, designed to protect otherwise undocumented individuals who were brought to the US as children, was terminated by former President Trump and recently restored following legal challenges. The Biden administration plans to reinforce this program and, ultimately, provide DACA beneficiaries with eligibility for US permanent resident status proposed through legislative changes.
Enforcement Priorities and Removal Suspensions
The Biden administration has placed a 100 day "hold" on most deportation actions. They have also rescinded the prior administration’s broad, non-prioritized, enforcement policy. The purpose of these steps is to allow for a review of current practices and to reestablish enforcement priorities. The State of Texas has challenged the 100 day hold and has been granted a two-week temporary restraining order, as of January 26.
Postponement of Last-Minute Regulatory Changes
The Biden administration has also taken steps to address end-of-term regulatory changes initiated by the prior administration. A memorandum, issued by the White House Chief of Staff, directs a series of steps to allow for the new administration’s review of pending regulations. Notably, proposed regulations which were sent to the Federal Register, but not yet published, are to be withdrawn. Additionally, consideration of a 60-day delay and possible reopening of the comment period is directed for rules which have been published in the Federal Register, but are not yet in effect.
This step has important repercussions for a series of recently-proposed regulatory changes to the H-1B, temporary professional, category. This includes a proposal to significantly narrow eligibility for this category and to re-define the employer/employee relationship in an effort to target the common practice of third-party contracting arrangements under which many H-1B foreign nationals are employed. Also affected is a regulation recently published in the Federal Register which would alter the H-1B cap selection system to give preference based upon the wage level offered for the position. A delay in this regulation will mean that the H-1B cap selection for the upcoming fiscal year will proceed without changes, which had provoked significant concerns and uncertainty amongst many US employers.
Comprehensive Legislative Immigration Reform Effort: US Citizenship Act of 2021
In addition to the many immediate immigration policy changes which the administration has the authority to implement quickly, the Biden administration has embarked on an ambitious effort to comprehensively reform current immigration laws. The US Citizenship Act, sponsored by Senator Robert Menendez (D-NJ), draws upon earlier legislative efforts to address a myriad of long-standing immigration issues which often cause the US immigration system to be characterized as being broken.
Given the complexity of immigration law, and the deep divides in opinion on this important policy area, it will take substantial effort and negotiation to pass the long sought-after comprehensive immigration reform. The ambitious changes currently proposed span the gamut from the creation of a legal status option for undocumented foreign nationals currently present in the US, to the elimination of per-country quotas for permanent immigration ("green card") applicants, to family reunification benefits, removal of long-standing penalties barring immigration relief, and efforts to reduce immigration court backlogs.
Key highlights and areas to watch for employment-based immigration include:
- Addressing current multi-year or decades long backlogs in the employment-based green card process. The objective of addressing the extended backlogs, particularly for those from countries with high rates of immigration, include:
- Recapturing unused visa numbers from prior years;
- Eliminating per-country annual limitations to remove country-based variations in the time it takes to become a US permanent resident;
- Utilizing the limited quotas for the primary applicant only, rather than counting spouses and children against the employment limits; and
- Creating exemptions from the quotas for those who have waited a decade, and STEM Ph.D. graduates.
- Protections and benefits for employment-based temporary categories, including:
- Expanded employment authorization for H-4 spouses;
- Enhanced "age out" protections for H-4 children to avoid family separation; and
- Dual intent provisions for F-1 foreign students (to facilitate transition to employment-based categories and retention of US degree holders).
- Other enhancements include:
- Pilot program to allow 10,000 Regional Economic Development Visas, for essential economic development strategies in specific communities; and
- Flexibility within the Employment-Based quotas to allow for temporary reductions due to high unemployment geographically or by labor market sector.
Immigration policies in areas other than employment-based immigration can have an impact on an employer's workforce, as well as their client and customer bases. With that in mind, other major benefits provisions within the proposed US Citizenship Act include the following:
- Lawful Prospective Immigrant (LPI) Status. This would provide a pathway for DREAMers, and others to transition to a legal immigration status. Applicants are subject to background checks, federal tax payment compliance requirements, and would have to hold LPI status for at least five years before becoming eligible for US permanent residence (green card) status.
- Family Reunification Provisions. Similar to the employment-based changes, the proposed legislation sets forth reforms aimed at clearing backlogs and reducing separation periods.
Balance with Enforcement
As with all broad immigration proposals, the US Citizenship Act of 2021 balances immigration benefits with enhanced border protections and enforcement initiatives. The proposal includes measures targeting smuggling and trafficking networks, improved use of technology at the borders, and a plan to address the immigration drivers from the Central American northern triangle countries.
Only the Beginning
The initial administrative actions and proposed legislation are the start of the new administration's immigration initiatives. Employers may find that measures such as re-affirmed and expanded work authorization for H-4 spouses provides them with a flexible option for current and potential employees. Similarly, the DREAMers have, in time, shifted from being primarily teenagers and very young adults, to an important part of the workforce. Most are in their early to mid-30s, and many have pursued higher education. Removing green card backlogs makes the process more viable and, in many cases, less costly for the employer. There will be a great many developments in this area projected for the next 100 days and beyond. We are available to share our insights and address questions on the meaning of these changes and proposals.