We officially made it out of 2020 and what a year it was. As 2021 makes its way in, immigration advocates around the country were uplifted to learn of President Biden’s plans for an immigration overhaul as one of his first priorities after taking office. In this issue of Transcending Borders_SM,we outline President Biden’s proposed plan to reform U.S. immigration. To understand just how daunting the Biden Administration’s task will be, we also summarize the magnitude of restrictions imposed in the 400+ immigration policy changes enacted under Trump’s presidency.

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Biden Plans to Launch Immigration Overhaul

President Joe Biden unveiled a sweeping overhaul of U.S. immigration law shortly after taking office Wednesday, January 20, 2021. Biden’s plan, entitled the “U.S. Citizenship Act of 2021,” includes an eight-year pathway to citizenship for immigrants without legal status, expanded refugee admissions, bolstered employment-based and family-based visas, enhanced technology at the border and more.

In stark contrast to Trump policies, Biden’s legislative proposal focuses on addressing the root causes of migration from Central America, a cause Biden worked to address as Vice President. The Biden immigration plan reportedly has three pillars: addressing the causes of migration, managing the border, and creating a path to citizenship.

The proposed path to citizenship, a central tenet of Biden’s plan, would put qualifying immigrants in a temporary status for five years and grant them a green card once they meet certain requirements (i.e. pay taxes, background check). After three years with a green card, an immigrant would be eligible to apply for citizenship. To avoid a rush at the border, eligible immigrants must have been in the United States as of January 1, 2021.

Other provisions in the Biden proposal include:

Reinstating a program, terminated by Trump in 2017, which grants temporary legal residence in the U.S. to minors from Central America.
Creating a reunification program for Central American relatives of US citizens so that those already approved for residency may be admitted to the US while their cases are processing.
Kickstarting and expanding refugee admissions programs at multiple processing centers abroad.
Bolstering key employment-based and family-based visas including:

Exempting spouses and children of green card holders from quotas that restrict immigration from certain countries.
Granting work permits for spouses and children of temporary work visa-holders.
Exempting Doctoral graduates in the science, technology, engineering and mathematics fields from visa limits.
Reducing family visa backlogs and employment-based visa backlogs, recapturing unused visas and per-country visa caps.

The Biden administration also issued several executive orders (EOs) on its first day which:

Repeal the ban on the entry of citizens from certain predominantly Muslim countries from entering the U.S.
Reverse a Trump EO that placed all undocumented individuals at risk of deportation, also ordering a DHS-wide review of immigration enforcement. Effective Friday, January 22, DHS will implement a 100-day moratorium on almost all deportations, among other measures.
Reverse Trump’s EO excluding undocumented immigrants from the Census. This measure will help protect states from losing congressional representation and federal funding due to inaccurate Census numbers.
Initiate a full review of the Temporary Protected Status (TPS) program to see which programs ended by the Trump Administration can be reinstated.
Extends Deferred Enforcement Departure (DED) for Liberians.
Calls on the Secretary of DHS and Attorney General to work together with urgency to preserve and strengthen DACA and pass permanent relief for DACA recipients and others.
Halts all border wall construction within seven days, to be followed by a review of construction contracts and plans to redirect wall funds.

The success of Biden’s plan’s, and especially his eight-year path to citizenship for undocumented individuals, is dependent on the ability of Congress to pass implementing legislation. In order to pass the legislation, which Vice President Kamala Harris referred to as “a smarter more humane way of approaching immigration,” the Biden administration will have to win all Democratic votes, plus ten Republican Senators. This lies in contrast to actions like repealing the travel ban, and extending TPS, which Biden can do by exercising his broad authority over immigration policy as President of the U.S.

Biden White House issues regulatory freeze, staying worrisome H-1B regulations.

The Biden administration is already taking steps to unravel the jumble of employment-based immigration changes launched under Trump’s presidency. In the Trump Administration’s final days, it rushed to push forward a flurry of regulations that would have had tremendous impact on the H-1B visa program, among many others. On Biden’s first day in office, January 20^th, the White House issued a memorandum directing that:

All rules pending at the Federal Register that are unpublished must be immediately withdrawn.
Agencies consider postponing the effective dates for regulations that have been published, but are not yet in effect, for 60 days, starting January 20^th.

As a result of the memorandum, the modified version of USCIS’s “Strengthening the H-1B Nonimmigrant Visa Classification Program” – which would have narrowly changed the way the agency determines what qualifies as an “employer-employee relationship” – will be withdrawn. The H-1B wage selection Final Rule, which was published but has not yet taken effect, may upon further agency action be postponed until March 21, 2021.

Further, since two Department of Labor (DOL) bulletins clarifying filing requirements for LCAs by secondary employers and on H-1B program obligations for common-law employers published on January 15, 2021, rely on the finalization of the DHS Rule, it is likely that they will be withdrawn as well.

We will keep you updated as developments arise.

How did Trump leave the U.S. Immigration System?

In the new year we look forward to less-restrictive immigration policies likely to be enacted by the Biden administration. However, the new year also signifies a time of reflection. President Trump issued more than 400 executive actions in order to limit immigration. These changes, compounded by the instability caused by COVID-19, have created a myriad of challenges for immigrants, their families, communities, employers, and immigration advocates. We highlight a few challenges below.

The Trump administration sought to make it significantly harder to obtain a positive adjudication of nonimmigrant visas, as demonstrated through an increase in denials and Requests for Evidence (RFE) rates. For instance, USCIS’ denial rate for I-129 petitions, the form submitted by U.S. employers who wish to sponsor a foreign national for temporary employment in the U.S., has doubled since FY2016, from 7% to nearly 15%. Similarly, USCIS’ rate of issuing RFEs also nearly doubled since FY 2016, from 22.1% to 40%, making it even more time consuming and costly to petition foreign workers. While the denial and RFE rate held somewhat steady since FY 2018, this is widely seen as a result of petitioners and immigration firms adapting and creating successful strategies, such as the implementation of additional specialty occupation evidence to H-1B petitions, to overcome higher levels of scrutiny from USCIS.

Under Trump, immigrant visa issuance declined due to an increase in denials, longer processing times, the COVID-19 pandemic and fewer applications. For certain citizens, the issuance of an immigrant visa depends more heavily on their country of origin. For instance, Haitian citizens received 67% fewer immigrant visas between 2016 and 2019. Mainland Chinese citizens received 35% fewer immigrant visas between 2016 and 2019. Countries included in Trump’s travel ban also were negatively impacted. The resettlement of Muslim refugees decreased 91% from 2016 to 2018. Iranian citizens received approximately 80% fewer immigrant visas. Before COVID-19, total immigrant visa issuance had declined by approximately 24% since FY 2016. At the end of 2020, in the midst of the pandemic, immigrant visa issuance declined 83% compared to FY 2016.

The pandemic exacerbated existing trends toward decline. Consulate closures and slower scheduling of interviews and biometrics have certainly contributed, however its notable that the decline existed prior to the pandemic. The USCIS’ denial rate of immigrant visas, which doubled from 8% in FY 2016 to 16% in FY 2020, is also seen as contributing factor in the decline. Consular posts’ denial rates are even higher: the denial rate increased from 13% in FY 2016 to 21% in FY 2019.

Another challenge involves the growing backlog of immigration cases at USCIS and the Justice Department’s immigration courts. Together, there exists an astonishing backlog of approximately 5.7 million cases. For contrast, in 2016 the backlog was approximately 3.4 million cases. The percentage of pending applications waiting for an adjudication after 7 months has increased from 4.7% in FY 2016 to 50.2% in FY 2020. Currently, a recently submitted Adjustment of Status application with the Vermont, California, or Texas service centers is estimated to take as long as 30+ months to adjudicate. Such extreme backlogs withhold immigration benefits, denying immigrants the ability to receive status, work, or travel authorization and denying Americans the ability to sponsor employees or their family. Any effort by the Biden administration to improve our immigration system must also reckon with an immigration system unable to timely adjudicate and process applications.

While the Biden administration cannot immediately reverse the impact of the Trump administration’s policies, GYH is pleased that important changes are already being implemented. We recommend watching our webinar, “Immigration Outlook 2021”, which offers additional details on what these changes may be, which policy changes the Biden administration may prioritize, and when changes may occur.

Reminder – H-1B Cap FY 2022

It’s time to prepare for the fiscal year 2022 H-1B cap visa lottery. Generally, this applies to any non-exempt employer who would like to sponsor a foreign national who has never held H-1B status.

What you can do now:

Review your roster of foreign national employees – focusing on:
Any employees with CPT or OPT (even if they have a year or two of STEM OPT left, we recommend applying annually to get the most “bites at the apple”)
Any employees in other non-immigrant statuses that expire before 10/1/2022 (which will be your next opportunity to sponsor cap-subject H1Bs)
Any former employees you would like to bring back/ potential new hires
Contact our firm (sooner is better) before 1/31/2021 for a complimentary 15-minute consultation to discuss next steps.