Biden Administration Tackles Immigration on Day One

Gibney Anthony & Flaherty, LLP
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On its first day in office, the Biden Administration acted to reverse numerous hardline immigration policies from the prior administration and to advance immigration reforms.  Some action comes in the form of executive orders and directives that take effect immediately, while other initiatives will be advanced through legislation, requiring Congressional approval.

Regulatory Freeze Pending Administration Review

The White House issued a memorandum directing all federal agencies to immediately withdraw  pending regulations that have not yet been published in the Federal Register and to consider postponing for 60 days the effective dates of regulations that have been published but have not yet taken effect.  Impacted regulations include those advanced by U.S. Citizenship and Immigration Services (USCIS) and the Department of Labor (DOL) in the weeks following the election.

  • The USCIS rule modifying the H-1B cap selection process to favor high-wage earners scheduled to take effect March 9, 2021 may be postponed until March 21, 2021, making it less likely to be implemented in time for the fiscal year (FY) 2022 H-1B cap selection process.
  • A  DOL rule dramatically increasing prevailing wage requirements for H-1B and E-3 temporary visas and PERM labor certification sponsorship, reissued by DOL on January 14, 2021 and set to take effect March 15, 2021, is also now in suspense. Under the rule, implementation of the new prevailing wage scheme would occur as of July 1, 2021, outside of the 60 day moratorium period.  As a result, it is not clear whether this rule will be covered by the White House memorandum. An earlier version of the rule, published in October 2020, was struck down by a federal court as unlawful, and similar legal challenges are expected if the re-issued regulation remains in place.
  • A rule aimed at amending how USCIS would determine whether there is an employer-employee relationship for the purpose of H-1B sponsorship was signed on January 14, 2021, but was not published. As such, it  has been withdrawn. The corresponding DOL guidance and policies, set to take effect 180 days from January 15, 2021, have also been withdrawn.

Travel Bans

DACA

  • President Biden issued a memorandum directing the Secretary of Homeland Security and the Attorney General to take all action necessary and appropriate to preserve and fortify the Obama-era  Deferred Action for Childhood Arrivals (DACA)  program. The DACA program defers deportation of certain undocumented immigrants brought to the U.S. as children, often referred to as “Dreamers,” and provides work authorization.  The prior administration spent years trying to rescind the DACA program, but was ultimately constrained from doing so by the U.S. Supreme Court. Currently, USCIS instructions provide  that  eligible individuals may submit first-time requests for DACA classification as well as requests to renew DACA classification and extend work authorization.

Immigration Legislation

The Biden Administration introduced an immigration reform bill, the U.S. Citizenship Act of 2021, which, If enacted, would reportedly include provisions to:

  • Create an earned roadmap to lawful permanent resident status and citizenship for certain undocumented immigrants residing in the U.S., expediting eligibility for Dreamers, individuals with temporary protected status (TPS), and agricultural workers.
  • Clear employment-based immigrant visa (“green card”) backlogs, recapture unused visas from prior years, reduce lengthy  wait times for green card issuance, and eliminate per-country visa caps.
  • Make  it easier for graduates of U.S. universities with advanced STEM degrees to remain in the U.S.
  • Incentivize higher wages for non-immigrant and high skilled workers.
  • Provide dependents  of H-1B visa holders with work authorization.
  • Establish protections to prevent children from “aging out” of immigration benefits when they reach age 21.
  • Create a pilot program to stimulate regional economic development, giving the Department of Homeland Security Authority to adjust green card allocation based on macro-economic conditions.
  • Reform family-based immigration by clearing backlogs, recapturing unused visas, eliminating lengthy wait times for green cards, and increasing per-country caps.
  • Increase Diversity Visas from 55,000 to 80,000 annually.
  • Support asylum seekers and promote immigrant and refugee integration and citizenship.
  • Supplement existing border security resources with improved technology and infrastructure.

With only narrow Democratic control in the U.S. Congress, and the competing need to combat  the pandemic and economic crisis, the Administration’s prospects for passing a sweeping immigration bill are  far from certain. Nonetheless it signals a new and more favorable outlook for immigration, and a significant departure from the restrictive policies advanced by the prior administration.

Gibney will closely monitor developments related to these initiatives in the weeks and months ahead and will provide updates as the Biden Administration’s immigration agenda develops and advances. 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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