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January 20, 2021

What Employers Can Expect Under the Biden Administration: Employment-Based Immigration in the US

This alert is another in the series covering changes employers can expect to labor and employment policy from President Joseph Biden’s administration.

President Joseph Biden and Vice President Kamala Harris have pledged to make significant changes to the American workplace. The new administration has even promised several new policies, including an expansion of workers’ rights, on day one. Though there is still uncertainty, Barclay Damon’s alert series will shed light on what employers can likely expect to see under the Biden administration over the next four years.

President Biden has inherited a multitude of immigration policy issues. The Trump administration took over 400 executive and regulatory actions on immigration since 2017, many targeting employment-based immigration. While President Biden has promised a set of executive orders to reverse some of these policies, unraveling many others will not be so easy. Adding to this complexity, of course, is the COVID-19 pandemic, which has disrupted virtually every aspect of the US immigration system. All of this leads us to ask—what does the Biden administration mean for employment-based immigration, and what can we expect over the next four years?

What Can Employers and Foreign National Workers Expect Immediately?

President Biden has promised to address certain elements of his immigration agenda within his first 100 days of presidency through proclamations, executive orders, and presidential memos. Many of these immediate actions are intended to reaffirm the country’s commitment to refugees and asylum seekers, particularly by revising current enforcement policies and entry-screening procedures, and sending humanitarian resources to the US-Mexico border. He has also vowed to "immediately rescind" current restrictions that prevent people in some Muslim-majority countries from traveling or immigrating to the United States. President Biden also intends to restore the Obama administration’s workplace enforcement guidelines, ending workplace raids and protecting sensitive locations (e.g., schools, hospitals, and places of worship) from enforcement actions, and directing such efforts toward threats to public safety and national security. President Biden will propose legislation to remove uncertainty of the Deferred Action for Childhood Arrivals (DACA) program and explore legal options to protect “Dreamers” and their families. Dreamers are viewed sympathetically by the American public and have gained bipartisan support in Congress.

As for employment-based visas, President Biden intends to immediately reverse certain Trump policies. In the last full week of the Trump administration, the DOL reissued a prevailing wage rule that substantially raises wage rates for H-1B, E-3, and H-1B1 visas, and for PERM labor certification green cards. (In October, a similar rule designed to reform the DOL’s prevailing wage methodology was immediately met with federal litigation; it was ultimately set aside in violation of the Administrative Procedures Act.) The second version of the rule provides a multiyear transition period that is intended to give employers time to meet the increases and makes certain accommodations for H-1B workers pursuing employment-based permanent residence. The rule is scheduled to take effect on March 15, 2021, with initial wage increases set to begin on July 1, 2021. However, this will likely be further extended, as the Biden administration indicated it will issue a memorandum on January 20, 2021, delaying implementation of “midnight regulations” (i.e., those issued since the election but not yet effective) for 60 days.

President Biden also promises to end the newly expanded Public Charge Rule, which took effect on February 24, 2020, and has been a ping-pong battle of extensive litigation in US courts since then. While the public charge concept was first established by Congress in 1882, the Trump administration announced new regulations that broadly redefine its meaning, aiming to reduce the number of people who are eligible for green cards and visas based on their likelihood of receiving government benefits, such as food stamps, Medicaid, and housing assistance. Currently, all green card applicants are required to collect and submit extensive paperwork to prove this. This requirement applies to employment-based applicants and their minor children, despite applicants having professional job offers in the United States. The Biden administration indicates it will end Trump’s public charge assessment of discriminatory criteria, which undermines America’s character as a land of opportunity that is open to all, not just the wealthy.

What Will Take Longer?

President Biden’s other proposed employment-based immigration reforms are likely to take longer, as these measures involve comprehensive immigration reform that will require legislative action by Congress.

President Biden wishes to establish a more fluid number of employment-based green cards annually based on macroeconomic conditions, reflecting the state of the labor market and demands from domestic employers. The Biden administration will aim to increase the number green cards allocated for permanent, employment-based immigration, and promote mechanisms to temporarily reduce the number of visas during times of high US unemployment. The Biden administration also wishes to exempt foreign graduates of a US doctoral program in STEM fields from employment-based visa caps and provide them with a green card with their degree. President Biden believes losing these highly trained workers to foreign economies is a disservice to US economic competitiveness.

President Biden also desires to create a new program that will allow cities and municipal counties to petition for additional visas in support of the region’s economic development strategy, provided employers in those regions certify there are available jobs and no workers to fill them. President Biden further wishes to reform visa programs for temporary and seasonal workers based on labor market studies, making it easier for them to switch jobs while also incentivizing employers to operate within legal channels and prevent the exploitation of workers.

While President Biden may be able to fulfill some of his immigration-related promises with executive orders and proclamations, true meaningful immigration reform must come from Congress. The last time Congress took comprehensive action to revise immigration regulations dates back to two pieces of legislation passed in 1986 and 1990. That’s right—more than 30 years ago, before the internet was even widely available to the public!

Immigration regulations that remain static for 30 years in an economy as large as the United States represent serious neglect of the of the potential it holds for innovation, competitiveness, and economic vitality in today’s global labor market. A modern immigration system must allow our economy to grow, while equally protecting the rights, wages, and working conditions of all workers—US citizens, green card holders, and foreign nationals alike. While President Biden can remove some of the hurdles foreign workers currently face in obtaining visas by executive orders and memorandums, it is up to Congress—not President Biden—to implement real, meaningful immigration reform.

If you have any questions regarding the content of this alert, please contact Jennifer Behm, immigration counsel, at jbehm@barclaydamon.com, or another member of the firm’s Labor & Employment Practice Area.

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