The Biden-Harris team’s plan includes a number of proposals of interest to business immigration:
- Reforming the visa program for temporary workers in select industries. Reforms would include allowing workers in select seasonal industries to switch jobs while certifying the labor market’s need for foreign workers. Employers would supply data showing a lack of labor availability and the harm that would result if temporary workers were unavailable. Strong safeguards would require employers to pay a “fair calculation of the prevailing wage” and ensure the rights of all workers to join a union and exercise their labor rights.
- Providing a path to legalization for agricultural workers. President-elect Biden supports “compromise legislation” between farmworkers and the agricultural sector that will provide legal status based on prior agricultural work history and a faster track to a green card and ultimately citizenship.
- Reforming the temporary visa system. The Biden plan notes that high-skilled temporary visas “should not be used to disincentivize recruiting workers already in the U.S. for in-demand occupations” and that an immigration system “that crowds out high-skilled workers in favor of only entry level wages and skills threatens American innovation and competitiveness.” President-elect Biden said he wants to work with Congress to first reform temporary visas to establish a wage-based allocation process and establish enforcement mechanisms to ensure they are aligned with the labor market and not used to undermine wages. Biden will also support expanding the number of high-skilled visas and eliminating the per-country limits on employment-based visas to avoid long backlogs.
- Increasing the number of visas offered for permanent, work-based immigration based on macroeconomic conditions. The number of employment-based visas is capped at 140,000 per year, without the ability to be responsive to the state of the labor market or the demands from domestic employers, the Biden plan notes. Biden wants to work with Congress to increase the number of visas awarded for permanent, employment-based immigration, and “promote mechanisms to temporarily reduce the number of visas during times of high U.S. unemployment. He would also exempt from any cap recent graduates of PhD programs in STEM (science, technology, engineering, and math) fields in the United States. The Biden plan states that President-elect Biden “believes that foreign graduates of a U.S. doctoral program should be given a green card with their degree and that losing these highly trained workers to foreign economies is a disservice to our own economic competitiveness.”
- Creating a new visa category to allow cities and counties to petition for higher levels of immigrants to support their growth. Biden will support a program to allow any county or municipal executive of a large or midsize county or city to petition for additional immigrant visas to support their region’s economic development strategy. Employers in those regions would need to certify that there are available jobs and no U.S. workers to fill them.
Many of these proposals would require congressional action, of course. The Biden team is also looking at what they can do otherwise, such as through the regulatory process and executive orders. The Trump administration has been finalizing a variety of rules that were published as proposed or interim final rules, some of which would require a lengthy regulatory process to undo.
A number of immigration experts have issued reports and proposals with recommendations on what Biden can do without congressional approval. For example, the Cato Institute released a “blueprint for agency action” that lists 30 deregulatory actions recommended by 15 authors. The proposals “focus entirely on agency measures to improve the process for legal immigrants.” Another report released by Cornell Law School proposes a pilot points-tested visa program.
Contact your WR attorney for advice in specific situations.
- The Biden Plan, https://joebiden.com/immigration/
- Immigration Policy Tracking Project website contains more than 1,000 entries including Trump administration rules, directives, form changes, memos, Attorney General certifications, executive orders, presidential proclamations, pending rule changes, and other actions. Each entry includes the underlying policy documents and any relevant predecessor policies or documents. The entries are searchable and can be sorted in a variety of ways, such as chronologically or by subject matter, agency, type of action, or status of policy change. https://immpolicytracking.org/?next=/home/
- “Dismantling and Reconstructing the U.S. Immigration System: A Catalog of Changes Under the Trump Presidency,” Cato Institute, https://www.migrationpolicy.org/research/us-immigration-system-changes-trump-presidency
- “Deregulating Legal Immigration: A Blueprint for Agency Action,” Cato Institute, https://www.cato.org/publications/study/deregulating-legal-immigration-blueprint-agency-action
- “Leading Legal Experts Urge Aggressive Immigration Actions,” The Hill, https://thehill.com/blogs/congress-blog/politics/530948-leading-legal-experts-urge-aggressive-immigration-actions
- “How Do We Reconceptualize and Remake Our Immigration System for the 21st Century?,” Ideaspace.com, https://ideaspace.com/state-of-play/how-do-we-reconceptualize-and-remake-our-immigration-system-for-the-21st-century/
- “Recruiting for the Future: A Realistic Road to a Points-Tested Visa Program in the United States,” Cornell Law School, https://www.lawschool.cornell.edu/information-technology/upload/Immigration-Points.pdf
- “What a Biden Win Means for Immigration: The First 100 Days,” Wolfsdorf Rosenthal, https://wolfsdorf.com/what-a-biden-win-means-for-immigration-the-first-100-days/
- “A Vision for America as a Welcoming Nation: AILA Recommendations for the Future of Immigration,” American Immigration Lawyers Association, https://www.aila.org/infonet/a-vision-for-america-as-a-welcoming-nation
- “At the Starting Gate: The Incoming Biden Administration’s Immigration Plans,” Migration Policy Institute, https://www.migrationpolicy.org/research/starting-gate-biden-administration-immigration-plans
- “Biden Expected to Reverse Many of Trump’s Immigration Policies,” Voice of America, https://www.voanews.com/usa/us-politics/biden-expected-reverse-many-trumps-immigration-policies
- Executive Summary, “From managing Decline to Building the Future: Could a Heartland Visa Help Struggling Regions?”, https://eig.org/wp-content/uploads/2019/04/Executive-Summary-Heartland-Visas.pdf
- “Biden’s New Plan for H-1B Visas, Green Cards to Benefit Thousands,” NDTV, https://www.ndtv.com/indians-abroad/bidens-new-plan-for-h-1b-visas-green-cards-likely-to-benefit-thousands-2322230
- “Biden Plans These 5 Executive Orders,” https://www.forbes.com/sites/zackfriedman/2020/11/08/biden-plans-these-5-executive-orders/?sh=1b704db4346b
- “The 277 Policies for Which Biden Need Not Ask Permission,” The American Prospect, https://prospect.org/day-one-agenda/277-policies-biden-need-not-ask-permission/