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Over the past four years, US immigration reform has remained a top priority of the Trump Administration. As a result, the nation has seen sweeping changes brought to policies impacting all sectors of the nation’s immigration system, from family-based green cards and employment-based visas to international travel. Now that the 2020 US presidential election has largely been decided, the current state and future of these policies hang in the balance as hundreds of thousands of employers, foreign workers, and other stakeholders across the country watch for change.

The following summarizes recent, impending, and potential shifts in immigration policy impacting employment-based visa holders and their employers as the transition of presidents with drastically differing views on immigration looms ahead.

 Recent Changes
  • Significant increases in Prevailing Wages for H-1B, E-3, and PERM applicants.

Published and made effective on October 8, 2020, the recent Department of Labor’s (DOL) rule drastically inflates prevailing wage salaries for H-1B and E-3 visa holders as well as PERM labor certification applicants, making it significantly more challenging for US employers to meet prevailing wage minimums to secure nonimmigrant visas and move forward with employment-based green card applications for foreign workers.

Several federal lawsuits have been filed challenging this rule, and a temporary or permanent injunction blocking the rule from taking effect is anticipated.

Current H-1B Proposals Under Trump
  • Heighten restrictions for the H-1B visa and third-party placement workers.

Effective December 7, 2020, the Department of Homeland Security (DHS) will be implementing an H-1B rule that alters the definition of a “specialty occupation” and heightens restrictions against third-party worksite placements.  The rule seeks to codify restrictions against companies whose H-1B employees conduct work at end-client, customer, or other third-party worksites.

  • Replace the H-1B lottery with a wage-based selection system.

A  rule to eliminate the H-1B lottery system and replace it with a wage-based selection system has been proposed.  The details of this rule have not yet been announced. Still, it is anticipated that a system selecting H-1B applicants based on the highest offered salaries will disproportionately disadvantage many entry-level professionals, particularly international students graduating from U.S. universities, who will be unable to secure H-1B employment after their student visas expire.

  • The outcome of proposals may depend on litigation.

Lawsuits challenging both the DOL rule altering the prevailing wage system for H-1B, E-3 and PERM applicants and the DHS rule heightening requirements for the H-1B visa are pending in federal court. They could lead to injunctions that temporarily or permanently block these changes from taking effect. Similarly, likely, the recent rule proposing changes to the H-1B lottery system will also be subject to litigation.

Potential Changes Under a Biden Administration

While the Trump Administration continues to push an aggressive agenda reforming longstanding immigration policy, the following is a list of key potential   reversals or changes under a Biden Administration:

  1. Reform for H-1B and other Nonimmigrant Visas
  • Reverse Trump’s Public Charge rule.

The Public Charge rule, which impacts nonimmigrant and immigrant applicants alike, requires the government to consider an applicant’s finances, assets, and history of relying on federal benefits as part of the adjudication process. Biden intends to reverse this policy.  Whether Biden can make good on this promise and how quickly may largely depend on the outcome of ongoing litigation and/or formal regulatory processes that require the involvement of both Congress and the President. It remains unclear how effective a Biden administration will be in reversing agency final rules with a Republic-majority Senate.

The outcome of this issue also hinges on an ongoing federal lawsuit, filed on July 29, 2020, in the US District Court of the Southern District of New York (SDNY), challenging the new requirement’s validity. At present, the rule is in effect nationwide, and DHS continues to review applications and petitions postmarked on or after February 24, 2020, under the Public Charge Final Rule.

  • Support WorkVisa Reform.

Biden has indicated that he supports reform for temporary work visas for highly skilled workers that are data-driven and reflects today’s labor market realities. Specific details regarding his policy goals in this area have yet to be announced.

  1. Expansion of Employment-Based Green Card Programs
  • Eliminate per-country limits on employment-based immigration. Biden indicates he will support expanding the number of high-skilled visas and eliminating limits on employment-based visas by country, which form the basis of heavy green card backlogs for primarily Indian and Chinese nationals. He also proposes creating a new visa category that allows cities or municipalities in more rural areas to petition for additional immigrant visas to support economic development in certain regions.
  • New Cap Exemptions for F-1 STEM Students. Biden states he will exempt from any existing cap recent graduates of Ph.D. programs in STEM fields in the US who are “posted to make some of the most important contributions to the world economy.”
  • Improve family-based immigration processes. Biden states he will support a process that allows applicants with approved immigrant petitions to receive a temporary non-immigrant visa until the green card is processed. He supports exempting the spouses and children of Lawful Permanent Residents (LPR) from caps, allowing for more expeditious LPR family green card processing.
  • Preserve the Diversity Visa Lottery. A program that the Trump Administration has taken steps to dismantle, Biden, promises to preserve the Diversity Visa Lottery program, which brings up to 50,000 immigrants from underrepresented countries to the US each year.
  • Increase oversight and training of ICE (Immigration and Customs Enforcement) and CBP (Customs and Border Protection). Although Biden has not made clear how this might impact the functions these entities oversee, it is possible that improvements could be made to how I-9 and Labor Condition Application (LCA) audits are conducted as well discrepancies in CBP policies implemented at different Ports of Entries across the country.
  1. Reversal of Trump-era Travel Restrictions
  • Rescind Trump-era “Muslim” travel bans. In his first 100 days of office, Biden promises to end the Trump Administration’s travel ban related to entry restrictions placed on travelers from primarily Muslim-dominant countries. These travel bans affect certain travelers from Iran, Libya, Yemen, Somalia, Venezuela, North Korea, Syria, Eritrea, Kyrgyzstan, Nigeria, Myanmar, Sudan, and Tanzania in effect.
  • Rescind visa-based travel bans. Biden has called for the reversal of travel restrictions not directly related to the COVID-19 pandemic. This will likely include the rescission of travel restrictions for high skilled workers such as those imposed by the Trump Administration on H, J, and L visa holders and immigrant visas as an “economic recovery” effort following the nation’s recession during the COVID-19 pandemic.

Although the outcome and timeline of how each of Biden’s immigration policy goals listed above will play out over the next four years are uncertain, stakeholders can expect to see policies to head in a different direction under Biden’s more immigrant-inclusive agenda. Corporate Immigration Partners (CIP) will continue to monitor and alert you to major shifts in these and other pertinent issues.

For specific questions, please contact your legal team at CIP.

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