Businesses & Foreign Nationals Eagerly Await Return to Immigration-Friendly Policies Under Biden Administration: What to Expect

Obermayer Rebmann Maxwell & Hippel LLP

Obermayer Rebmann Maxwell & Hippel LLP

Fifth in a Series of Blogs Regarding the Presidential Transition

From the beginning of the Trump presidency, the administration made clear that it would seek to enact major reforms of the U.S. immigration system, underpinning such an ambitious effort with the president’s “Buy American, Hire American” Executive Order.  In sum, the Trump administration has made more than 400 alterations to the U.S. immigration system while in office. As a result, the practice of immigration law and the process of securing a visa has become unpredictable, which is never good for business. Naturally, the accumulation of all these moving parts has had a chilling effect on some businesses who employ foreign nationals, as they faced an uncertainty that evaded diligent global mobility planning.  So, the business and immigrant communities are eagerly waiting to see what immigration will look like under the incoming Biden administration. What can they expect?

There is a lot to tackle on the immigration front for the Biden Administration, so we highlight some of the most salient and relevant proposals:

  • Rescind the Public Charge Rule requiring that green card applicants and applicants for nonimmigrant visa extensions/renewals respond to probing questions about their prior use of certain public benefits and assistance programs as well as [for green card applicants] questions about assets, liabilities, credit history/score, and educational/professional credentials.
  • Withdrawal of Guidance Memorandums on Respecting Precedent in Adjudication of USCIS cases to return to the prior practice of granting deference to prior visa application approvals when seeking an extension/renewal under the same terms. This will drastically improve reliability and planning for businesses.
  • Reprioritize enforcement actions to end workplace raids and protect certain locations, such as churches, from enforcement actions. Employers of foreign nationals—especially those working for IT & business consulting agencies at third party client sites—can anticipate fewer worksite enforcement visits that seek to verify employment in accordance with the visa petition requirements.
  • Increase the number of visas available for employment-based permanent immigration (i.e., raise the current annual cap of 140,000/year).
  • Create exemptions from any cap for graduates of Ph.D. programs in STEM fields in the U.S. who are poised to make some of the most important contributions to the world economy. This would address a notoriously problematic aspect of the U.S. immigration system, whereby foreign nationals who come to our universities have very limited options that enable them to remain and work in the U.S. upon graduation from the university, which results in a “brain drain” of talent and business leaders who are forced to leave the U.S. when they cannot secure a visa post-graduation.
  • Review of F-1 and J-1 proposed rules on Duration of Status by the Trump administration that seek to upend the student visa program by imposing a date-certain validity period on students in lieu of the long-standing “duration of status” structure, which provides much needed flexibility for students whose progress does not always adhere to strict timelines.
  • Appoint seasoned and experienced immigration professionals to leadership positions through Senate-confirmed appointments and ensure proper training of ICE and CBP personnel in effort to improve fairness and transparency and reduce abuses of power and inhumane treatment of foreign nationals.
  • Streamline and improve the naturalization process for lawful permanent residents seeking citizenship. The Biden administration plans to undo roadblocks and changes to the naturalization process implemented by the Trump administration that made it more difficult to qualify and was less forgiving of infractions in an applicant’s history. This also includes the novel directive to re-open and rescind citizenship that had already been granted.
  • End the designation of National Emergency that permits siphoning funding from the Dept. of Defense to be used to build a wall along the border.
  • Rescind the travel and refugee bans prohibiting foreign nationals from seven predominately Muslim countries from visiting the US (known as the “Muslim ban”).
  • Protect Dreamers and their families by reinstating the DACA program and expand availability of benefits for DACA beneficiaries.
  • Reverse policies that separate families arriving at our borders, end prolonged detentions, & end restrictionist asylum policies that make it more difficult for individuals to seek and apply for asylum protections. End for-profit detention centers for detained foreign nationals.

As can be seen through a quick review of some of the more notable topics, the Biden Administration has its work cut out for it when it comes to immigration system reform. Some of these actions can be enacted swiftly through rescission or issuance of Executive Orders and the like, while still others will require concerted action through the agencies or Congress. 

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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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