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.
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:
- 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.
- 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.
- 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.
- The Department of Homeland Security has withdrawn a proposed rule that sought to eliminate the eligibility of certain H-4 spouses of H-1B workers for employment authorization (also known as the “H-4 EAD”).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 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- The Department of Labor has withdrawn a bulletin that would have revised its interpretation that “employers”, including end-clients in consulting or third-party placement situations, must file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- U.S. Citizenship and Immigration Services has rescinded a 2017 policy memorandum that had restricted its view of the computer-related occupations that qualify for H-1B classification and articulated a stricter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.”
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.
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