The Biden Administration is expected to bring changes across the immigration landscape. Today, President Biden will unveil a sweeping immigration reform bill, which would represent the most extensive immigration reform package since 1986 if passed.  

The key provision of the bill is creating a path to legalization for undocumented immigrants. The bill also reportedly proposes to allow for unused employment- and family-based immigrant visas from past years to be recaptured and to exempt spouses and children of green-card holders from the annual immigrant visa quotas, allowing for more immigrant visas to be allocated against annual limits. If these changes are enacted, green card processing times would be significantly impacted, reducing the backlog of green card applications across various categories and allowing those who have been waiting many years to finally be approved for permanent residence.  

For undocumented immigrants, the bill would provide an eight-year path to citizenship for an estimated 11 million people living in the U.S. without legal status. To qualify, applicants would need to have been present in the U.S. on or before January 1, 2021, unless granted a waiver on humanitarian grounds. They would be eligible for work and travel authorization. After five years, they would be able to apply for a green card if they pass background checks and pay taxes.  Certain categories of immigrants, including those covered by the Deferred Action for Childhood Arrivals (DACA) program and Temporary Protected Status (TPS), as well as farmworkers would, however, be able to apply for green cards immediately. After holding their green card for three years and passing additional background tests, they could apply for U.S. citizenship.

The bill also seeks to address the underlying causes of migration from Central America with the vision of establishing a regional approach to migration, as well as providing technology and funding for border security.

While the bill is a proposal sent to Congress and would need to go through committee and be debated in both houses of Congress, reconciled, and passed before implementation, it is undoubtedly a reflection of the Administration’s intention to prioritize immigration reform.

President Biden is also expected to issue a memo on his first day in office delaying last-minute actions by the Trump administration by 60 days, including those detailed below. Known as midnight regulations, these are regulations promulgated by the Trump Administration since the election that will not take effect until after inauguration day. 

On January 8, USCIS published a Final Rule which drastically alters the H-1B cap lottery system, the system which determines who is eligible to file a petition for a cap-subject H-1B each Fiscal Year. Please view our News Flash for an overview of the changes, which will move the system from a random lottery to one in which cap numbers are selected based on the petitioner’s wage offer, relative to the prevailing wage levels for the occupation in the statistical area of employment

Delayed implementation of the new rule by the Biden Administration potentially could result in the rule not being in effect for the FY 2022 cap lottery. However, it should be noted that the Biden Campaign platform indicated support for a wage-based allocation process for work visas.   

On January 14, the Department of Labor (DOL) published a Final Rule which significantly changes the prevailing wage landscape for H-1B, H-1B1, E-3 and PERM cases. The rule, “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States,” is intended to help protect U.S. workers from “unfair competition posed by the entry of lower cost foreign labor into the U.S. labor market.” 

The rule was initially published as an Interim Final Rule (IFR) in October 2020 with immediate effect, but was suspended by a U.S. District Court on December 1 because DOL did not follow the required regulatory process. The new Final Rule, which DOL maintains now meets regulatory requirements, is similar to the IFR, with the main point being an overhaul of the methodology used to calculate prevailing wages resulting in significantly higher wage requirements for H-1B, H-1B, and E-3 workers and PERM applicants.  

The rule takes effect on March 15, 2021, but the new wage requirements will not be implemented until July 1. However, implementation is now expected to be delayed by the Biden Administration. The revised final rule may also continue to be litigated. 

On October 8, 2020, DHS published an Interim Final Rule (IFR), “Strengthening the H-1B Nonimmigrant Visa Classification Program,” which was set to take effect on December 7. The IFR would narrow the definition of “specialty occupation” for H-1B cases, along with the definition of the employee-employer relationship, and create additional limitations on third-party worksite petitions. These changes would impact all H-1B petitions filed after the implementation date. On December 1, a U.S. District Court found that DHS violated required regulatory procedures by skipping the standard notice and comment period for regulations. The Court set aside the Interim Final Rule, so it has not been implemented. 

On January 15, 2021, USCIS published an advance copy of its Final Rule, “Strengthening the H-1B Nonimmigrant Visa Classification Program,” which has been sent to the Federal Register for publication but not yet published. Once published, it will not take effect for 180 days. The new Final Rule matches the language of the IFR from October, except that it is narrowed to focus on the employer-employee relationship and does not revise the definition of specialty occupation.  

The rule is expected to be withdrawn from consideration by the new administration.

In conjunction with the USCIS Final Rule, DOL released policy memos on January 15 regarding H-1B obligations for “common-law” employers and LCA filing requirements for “Secondary Employers”. The Final Rule would require the employer of a contractor working on-site to file an LCA and H-1B petition on the contractor’s behalf. A Forbes article summarizes some of the changes.  

As the two DOL policy bulletins rely on the finalization of the DHS Rule, it is likely that they will be withdrawn by DOL as well.

We expect continued changes to immigration policy and regulations in the coming weeks, and will provide updates on those changes that impact our clients.

Sincerely, 

The Attorneys at RSST Law Group