Amongst the dozens of Executive Orders and other initiatives
undertaken by President Biden within his first few days in office,
there were a number of immigration measures. Most notably, the
President took swift action on travel into the U.S. from abroad as
related to the pandemic and otherwise, addressed last minute
regulatory changes with dramatic impact on the temporary H-1B visa
category and announced plans for a robust immigration package to be
delivered to Congress. The story on immigration reform, with the
pandemic as a backdrop, continues to evolve rapidly. Here's a
summary on each of these topics and predictions on what comes
- International Travel
Beginning Tuesday, January 26, 2021, all travelers, including returning U.S. citizens and permanent residents, must produce a negative COVID-19 viral test or proof of a positive test and a physician's note confirming recovery from the virus and travel clearance. More details can be found here. Despite the new COVID-19 testing requirement and a last-minute announcement by the Trump administration to the contrary, COVID-related travel restrictions into the U.S. also remain in place. Specifically, foreign nationals, including visitors, from the U.K., Ireland, most of western Europe, Brazil and China may not travel to the U.S. unless they qualify for one of the limited exceptions. See our Covid-19 Resource Center for more information. With increasing concerns over new variants of the COVID-19 virus discovered in South Africa, travel has now been suspended from that country as well.
The Trump administration's travel ban on H-1B, L-1 and certain J-1 visa holders was extended by the former President and is not set to expire until March 31, 2021. Rumors abound that President Biden will terminate this ban as early as this week. The President immediately revoked the prior administration's controversial travel bans affecting foreign nationals seeking entry to the U.S. from more than a dozen predominantly Muslim countries. The new Presidential Proclamation includes details on resumption of visa processing for those individuals and calls for a review of information sharing between those foreign governments. With the lifting of restrictions on those seeking entry from predominantly Muslim countries and the possibility of lifting of travel restrictions for the visa categories referenced above, the COVID-19 testing requirements and other country-specific travel bans remain fully in place.
- Regulations Impacting H-1B
While the Biden Administration has not yet announced its plans for the Fiscal Year 2022 H-1B visa lottery, we expect the same H-1B electronic registration system launched last year will remain in place. If so, electronic registrations will be submitted on behalf of each individual seeking H-1B status between March 1 and March 20, 2021, and then the lottery selection will be held in late March 2021. Employers with registration(s) selected in the lottery will then have 90 days in which to file the full, corresponding H-1B petition with USCIS on behalf of the prospective employee.
Please note, there are two regulations released during the final weeks of the Trump Administration scheduled to take effect in March, which could dramatically impact the H-1B lottery. One regulation is scheduled to take effect on March 9 and calls for replacement of the long-standing random lottery selection process with a wage-based selection process, prioritizing those H-1B petitions with substantially higher wages. Another regulation is slated to take effect on March 15 and would significantly increase the prevailing wages for all H-1B workers, including those entering the H-1B lottery as well as wages for existing H-1B workers. As anticipated, there are credible reports that the agencies will freeze these rules for 60 days, and it remains to be seen whether this administration will next move to rescind them altogether.
- Comprehensive Immigration
President Biden has introduced The U.S. Citizenship Act of 2021, which seeks to modernize the U.S. immigration system and would be the most comprehensive change to immigration in decades. The measure is being led in the Senate by Senator Bob Menendez and in the House by Representative Linda Sanchez. Highlights of the Bill are expected to include:
- An eight-year path to citizenship for undocumented individuals beginning with an application for temporary legal status, application for green card after five (5) years and then three (3) years to citizenship. Certain individuals with longstanding ties to the U.S. could be expedited, including those with DACA ("dreamers"), Temporary Protected Status and immigrant farmworkers.
- Reform of the family-based immigration system by reducing backlogs, recognizing permanent partnerships, eliminating the current 3- and 10-year bars separating families as a result of previous immigration violations, and creating temporary pathways to keep families together while awaiting green card availability.
- Expansion of existing immigration channels by recapturing millions of unused visas to reduce green card backlogs, eliminating per country caps on visas, as well as creating better pathways for graduates of U.S. STEM programs with advanced degrees and those working in lower wage sectors, providing work authorization for H-1B dependents and preventing children from "aging out" of the system when accompanying their parents.
- While not specifically including a pathway for immigrant entrepreneurs, the measure also creates a pilot program to stimulate regional economic development, improves flexibility to adjust green card allocation based on market conditions and incentivizes higher wages to be paid to foreign nationals holding high-skilled visas to prevent unfair competition with American workers. This would presumably impact the H-1B, L-1, E-1/E-2 and various free trade visa categories.
- Improvements to the employment verification process, including increasing penalties for employers and prioritizing border security through use of technology, as well as addressing the root causes of migration particularly from El Salvador, Guatemala and Honduras.
Among the many challenges President Biden is facing on reforming our immigration system is securing bipartisan support in both chambers for this major reform bill. Simultaneously, the President is expected to continue a review of Trump-era Executive Actions and Proclamations and has already called on all federal agencies to review and consider delaying for 60 days the effective dates of new regulations that have not yet taken effect, such as the H-1B regulations discussed above. Further complicating potential changes on federal immigration policy, multiple U.S. Department of Homeland Security agreements were signed in the final weeks of the Trump administration with several individual states (including Indiana, Louisiana, Arizona and Texas). These agreements require a 180-day consultation period with state and local governments before changes to immigration-related executive branch policy can take effect, potentially creating a patchwork approach on federal policy similar to what has occurred through inconsistent federal judicial decisions across the country. Even under a decidedly immigration-friendly new administration, comprehensive reformation of our nation's immigration system may remain elusive. However, these bold proposals and a less restrictive immigration climate could pave the way for significant changes in the coming months.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.