Biden Immigration Bill: What it Means for Employment-based Immigration

Harris Beach PLLC

On Thursday, February 18, House Democrats introduced the Biden Administration’s Immigration Bill “The U.S. Citizenship Act.” This is an ambitious, comprehensive immigration bill that likely will not be passed as a comprehensive bill but may be broken into smaller parts to be presented to Congress in coming months.

Why is this bill important to understand?

It tells us a lot about what the Biden Administration’s plans and policies regarding immigration reform entail. The White House has said it is open to passing smaller targeted bills to cover some of the provisions included in this bill.

A separate Dreamers Act will likely be introduced, as this has been a mainstay of Biden’s immigration policy. It would allow students who came to the U.S. at age 15 or younger at least five years before the date of the bill's enactment and who have maintained good moral character since entering the U.S. to qualify for conditional permanent resident status upon acceptance to college or graduation from a U.S. high school.

It seems that the Dreamers and border control issues garner most of the media attention around immigration reform, but there are also real impacts to employment-based immigration included in this bill. There is the good news, that certain green card categories (EB-2 and EB-3) would enjoy increased numbers, clearing up some of the backlog for those professionals here in limbo and waiting years if not decades for the ability to apply for permanent status.

The bad news for many employers is that we can also anticipate that any smaller targeted bill on temporary workers will include some rather problematic wage-based provisions, making it difficult for small employers, start-ups in certain industries and rural hospitals and medical employers to be able to obtain an H-1B (temporary professional worker visa) for entry-level positions.

What does this Bill tell us about the Biden Administration’s policies on employment-based immigration and temporary workers?

While this bill does contain some very important changes that would help clear out the Permanent visa backlogs, there are some challenges that may arise for temporary workers in the U.S.

International students with a Ph.D. in STEM (science, technology, engineering and math) fields from a U.S. university would get green cards without numerical limits, and F-1 students would be considered “dual intent” when applying for visas. Important to note however, is that biomedical and biological sciences as well as health professions are not included in the eligible STEM fields of study.

One problematic section of this bill for some employers would change the existing H-1B lottery program and replace it with wage-based considerations that would prioritize the cap-subject H-1Bs from highest to lowest salary. This is holdover from the Trump administration and is being challenged in federal court. However, the Biden administration’s willingness to include this in its own immigration bill tells us that it may be something they are considering as a future change to the H-1B visa petition process.

This would make it very prohibitive for international students or others seeking employment in entry-level positions to be able to get an H-1B visa petition approved, as they would not have enough experience to obtain higher-salaried positions. Likewise, it would be problematic for smaller employers and start-up companies who rely upon those F-1 students coming out of Master’s level programs to fill numerous entry-level engineering and computer software types of jobs. It would favor senior employees, regardless of talent or their expected contribution to the economy or society. It would also disadvantage startups, smaller companies and firms outside of the largest metro areas.

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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