Business Immigration and the Biden Administration

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The first two weeks of the Biden Administration have seen a flurry of activity indicating it will move away from the more restrictive immigration environment of the Trump era, including for employment-based immigration programs. This post summarizes some of the early actions the Biden Administration has taken.

Regulatory Freeze

The Biden Administration instituted a freeze on all pending and proposed regulations for a 60-day period of review. In its last several months, the Trump Administration had issued or proposed a series of new rules to change or restrict employment-based immigration programs. The implementation of these Trump-era rules has been put on hold while the Biden Administration decides how to proceed:

  1. The Department of Labor has proposed to delay—from March 15, 2021 until May 14, 2021 the effective date of a rule that would change the computation of prevailing wage levels—and dramatically increase the minimum wages paid to foreign nationals in certain visa programs. A comment period regarding the proposed delay is open until February 16, 2021.
  2. The Department of Homeland Security has delayed the effective date of a rule replacing the random H-1B lottery with a wage-based selection process from March 9, 2021 until December 31, 2021. As a result, the FY2022 H-1B lottery to be held in April 2021 will continue to use the random selection process.
  3. The Department of Homeland Security will withdraw the modified version of a proposed rule that would have tightened the eligibility requirements for the H-1B visa program.
  4. The Department of Homeland Security has withdrawn a proposed rule that sought to eliminate the eligibility of certain H-4 spouses of H-1B workers for employment authorization (also known as the “H-4 EAD”).

Other Actions

Other executive and agency actions that impact employment-based immigration programs include the following:

  • On January 25, 2021, President Biden revoked the “Buy American and Hire American” executive order issued by President Trump in April 2017, which had been used to restrict employment-based immigration programs at all levels, from broad agency policies and goals, to the adjudication of individual petitions and visa applications.
  • The Department of Labor has withdrawn a bulletin that would have revised its interpretation that “employers”, including end-clients in consulting or third-party placement situations, must file Labor Condition Applications for H-1B workers.
  • U.S. Citizenship and Immigration Services has rescinded a 2017 policy memorandum that had restricted its view of the computer-related occupations that qualify for H-1B classification and articulated a stricter interpretation of what occupations qualify as an H-1B-eligible “specialty occupation.”

Looking Forward

We expect the Biden Administration to continue to pursue a more open immigration policy, including with respect to employment-based immigration programs. Indeed, on his first day President Biden sent an immigration bill to Congress to reform and modernize the immigration system, including provisions for employment-based programs. Employers should continue to monitor the situation and work with their immigration counsel to understand any new policies and practices and how they impact foreign national employees.

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.

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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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