Many Americans are understandably distracted by President Trump’s unprecedented efforts to remain in office despite losing the election and related actions of his supporters, such as riots and invasions of the Capitol and several state buildings nationwide. With a flurry of eleventh-hour regulations being finalized at the same time, the Trump administration seems set to remake the business immigration arena for some time to come.
Not so fast, however. President-elect Biden, along with both the Senate and the House of Representatives controlled by Democrats in the new Congress, will have several tools to mitigate or eliminate at least some of the Trump administration’s actions. For example:
- Litigation proceeds on several fronts and has been successful in some cases.
- The Congressional Review Act (CRA) allows Congress to overturn a rule issued by a federal agency within 60 days, by a simple majority.
- Biden has announced plans to issue executive orders quickly, including on his first day in office.
- The Biden-Harris plan includes taking other steps during the first 100 days, including regulatory actions.
With respect to reform efforts through legislation, a Democratic Congress does not guarantee that all of Biden’s plans will pass, of course—or that Biden will want to reverse all of the Trump administration’s actions—but there’s a better chance that at least a good portion of those actions will be stopped.
The Biden-Harris team has already announced ambitious plans affecting business immigration, including reforming the visa program for temporary workers in select industries; providing a path to legalization for agricultural workers; reforming the temporary visa system overall; increasing the number of visas offered for permanent, work-based immigration based on macroeconomic conditions; and creating a new visa category to allow cities and counties to petition for higher levels of immigration to support their growth. Many of these proposals would require congressional action.
Following are selected recent developments:
H-1B and ‘Specialty Occupation’ Issues; Bans on Nonimmigrant Workers
What happened: The Trump administration has taken a variety of actions against H-1B workers and has imposed restrictions including redefining the employer-employee relationship and the term “specialty occupation,” which adversely affects H-1B workers and companies that hire them, and drastically raising prevailing wages. The administration published several interim final rules that took effect immediately without providing an opportunity for public notice and comment.
Most recently, U.S. Citizenship and Immigration Services (USCIS) issued a final rule on January 7, 2021, prioritizing the selection of new H-1B petitions in 2021 based on higher proffered wages, which would mostly end the H-1B visa lottery.
Also, the Ninth Circuit ruled on December 16, 2020, that USCIS’s decision to deny a visa for a computer programmer because it was not a “specialty occupation” was arbitrary and capricious.
Where things stand now: The administration has backed down in some instances following litigation. The new final rule mentioned above, which is scheduled to take effect March 9, 2021, is likely to fail: it could be challenged via the CRA or in court. Congress mandated that H-1B visas are to be awarded not based on the wages offered but on the order in which the petitions are filed.
Some lawsuits have been successful on other fronts too, at least in the short term. For example, in National Association of Manufacturers (NAM) v. DHS, a U.S. district judge ruled against certain aspects of the visa issuance block against many foreign workers. In Anunciato v. Trump, plaintiffs include more than 245 visa applicants (family, employment, and diversity-based) and their U.S. sponsors, who argue that a Trump proclamation unlawfully bars them from immigrating.
…And More Bans on Foreign Workers
What happened: President Trump signed a proclamation on December 31, 2020, that extends his earlier proclamations banning the entry into the United States of certain immigrant and nonimmigrant visa applicants through March 31, 2021. The banned applicants include H-1B, H-2B, and L-1 visas, and J-1 visa applicants participating in intern, trainee, teacher, camp counselor, au pair, and summer work travel programs, along with spouses and children.
Where things stand now: Once President Biden takes office, he will issue proclamations of his own and work with Congress to effect changes. For example, the Biden-Harris plan states that the new administration will 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. Then, Biden will support expanding the number of high-skilled visas and eliminating the limits on employment-based visas by country, which create unacceptably long backlogs.”
Given all the late-breaking efforts by the Trump administration to seal its anti-immigration policies for some time to come, the road ahead to undo those efforts and advance the Biden administration’s plans may be bumpy and arduous, and include detours, but with a Democratic Congress entering a new session, and with experienced people taking the helm of the nation’s leadership, there is cause for optimism about the Biden plans’ chances for success and thus for the outlook for business immigration, especially post-pandemic.
Contact your WR attorney for advice in specific situations.
- More info:
- “2020 At-A-Glance: Immigration Update,” Wolfsdorf Rosenthal, LLP, https://wolfsdorf.com/2020-at-a-glance-immigration-update/
- “The Biden Plan for Business Immigration: What to Expect,” Wolfsdorf Rosenthal, LLP, https://wolfsdorf.com/the-biden-plan-for-business-immigration-what-to-expect/
- The Biden Plan, https://joebiden.com/immigration/
- “Democrats Have a Filibuster-Proof Tool to Erase the Trump Administration’s Final Months,” Slate, https://slate.com/news-and-politics/2021/01/congressional-repeal-act-trump-democrats.html
- “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
- “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/
- USCIS final rule on using wages to prioritize H-1B visas, https://bit.ly/38s6r9s
- USCIS news release, https://www.uscis.gov/news/news-releases/uscis-modifies-h-1b-selection-process-to-prioritize-wages
- “With Democratic Senate Majority, Biden Has Power To Quickly Undo Trump Regulatory Rollbacks,” Forbes, https://bit.ly/3i0pQBF
- “DHS Publishes Final Rule To End H-1B Visa Lottery,” https://www.forbes.com/sites/stuartanderson/2021/01/08/dhs-publishes-final-rule-to-end-h-1b-visa-lottery/?sh=7b8df1f94af0
- Court order in Chamber of Commerce v. DHS vacating H-1B interim final rules, https://www.courtlistener.com/recap/gov.uscourts.cand.367484/gov.uscourts.cand.367484.73.0.pdf
- DOS cable re NAM v. DHS, https://drive.google.com/file/d/1i-ag8fTx4xmKC_DQdb2UGbXI7L-EFUui/view
- Innova Solutions v. Baran, https://cdn.ca9.uscourts.gov/datastore/opinions/2020/12/16/19-16849.pdf