Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Former President Trump’s administration made countless policy changes that have transformed the U.S. immigration landscape over the past four years. With President Biden now in office after running a presidential campaign that emphasized the benefits of lawful and employment-based immigration, the new administration has issued a number of executive orders to reverse the Trump administration’s positions and eliminate restrictions. President Biden is also supporting proposed legislation to institute comprehensive immigration reform with pathways to citizenship. The new policy approach comes in stark contrast to the more restrictive policies implemented in recent years that have complicated employment-based visas. Below we enumerate some of the major new or planned changes.
On his first day in office, President Biden issued five immigration-related executive orders. Most of these orders were instituted in response to the previous administration’s executive orders or proclamations on immigration and travel, and create a number of protections for certain individuals, including work-authorized DACA recipients. Below we break down the employment-related immigration executive orders issued to date:
- Order Preserving and Fortifying the Deferred Action for Childhood Arrivals (DACA Program)
The new order calls on the U.S. Department of Homeland Security (DHS) to preserve and fortify DACA in line with the Obama administration’s 2012 guidance, deferring removal of certain individuals brought to the United States as children. The new DACA executive order will come as a relief to many employers that employ individuals on DACA-related work permits. DACA recipients hold employment authorization and receive protection from deportation. There are hundreds of thousands of DACA recipients working nationally, playing a key role in the professional economy, especially in the food service, sales, office and administrative support, healthcare, education, and computer systems occupations and industries.
- End to Ban on Individuals from Certain Muslim-Majority Countries
In 2017, President Trump restricted travel and immigration to the United States from Syria, Iran, Iraq, Sudan, Libya, Somalia and Yemen, before adding Eritrea, Nigeria, Myanmar, Kyrgyzstan, and Tanzania in 2020. President Biden has formally ended those bans. As the bans prevented individuals from these countries from using certain immigrant and nonimmigrant categories—including business and employment visas—for admission to the United States, the removal of these restrictions will allow employers more flexibility in hiring employees from these targeted countries. The State Department is instructed to restart adjudication of visa applications for these countries.
- Order Reinstating “Deferred Enforced Departure” for Liberians until 2022
This order allows certain Liberian nationals to continue in employment-authorized status, with “deferred enforcement departure” extended an additional year, until June 30, 2022.
- Order Redirecting Funds Previously Allocated to U.S.-Mexico Southern Border Wall Construction
This order is expected to pause construction of the U.S.-Mexico southern border wall. President Biden had previously indicated a desire to invest instead in smart technology-based border security.
- Order Instructing on Immigration Enforcement Policies and Priorities
This order will repeal the enforcement initiatives Mr. Trump issued in the first week of his presidency in 2017, which made interior immigration enforcement much stricter through the hiring of new ICE agency officers, utilizing state and local police to enforce immigration laws, and defining enforcement priorities broadly, among other measures. The new order is expected to stop these enhanced enforcement measures and penalties issued during the prior administration.
- Memorandum Freezing In-Process Regulations and Rules from Trump Administration
The Biden administration issued an additional presidential memorandum instructing federal agencies to consider postponing the effective dates (for a period of 60 days) of final rules published in the Federal Register that have not yet taken effect, in order to review questions of fact, law, and policy that the rules may raise. Rules that have been sent to the Office of the Federal Register but not yet published must be immediately withdrawn for review and approval. We are monitoring the impact on currently pending proposed rules impacting the immigration sphere (including a number of pending or not-yet effective rules concerning employment visas that change prevailing wage levels for certain visa applicants and institute changes to the H-1B lottery selection system).
The Biden administration has announced a comprehensive proposed immigration reform bill, which was sent to lawmakers on his first day in office. While the text of the proposed bill has not been released to the public, key points summarized by White House officials to various media outlets indicate that the bill likely includes the following immigration-related reforms:
- Provides expedited (immediate) path to citizenship for DACA recipients, immigrant farm workers and Temporary Protected Status individuals (who are generally work-authorized);
- Enables undocumented immigrants to become eligible for a green card within five years and citizenship in eight years (will address approximately 11 million undocumented immigrants). Qualifying individuals must have been present in the United States on January 1, 2021 under this proposal;
- Raises per-country limits on family-based immigration and eliminates per-country limits for employment visas;
- Increases worldwide level of employment-based immigrants by increasing the base number for calculating the annual ceiling to 170,000 from 140,000 (with addition of unused immigrant visas from 1992 through 2020);
- Enables individuals who have earned doctoral degrees in STEM fields from U.S. universities to be exempted from annual numerical limits on employment-based visas;
- Increases the number of employment-based “Third Preference” (EB-3) visas reserved for “Other Workers” (other than skilled and professional workers already encompassed by Third Preference category) from 10,000 to 40,000 with changes in allocation among other employment-based preference categories;
- Addresses visa backlogs by eliminating numerical limitations on immigrants (and derivative beneficiaries, such as spouses and children) with approved visa petitions whose wait times exceed 10 years;
- Authorizes DHS to temporarily reduce admissions of employment-based “Second Preference” and “Third Preference” immigrants (EB-2 and EB-3 immigrants) who hold advanced degrees, exceptional ability, are skilled and professional workers, or “other workers” during times of high unemployment by geographic area/labor market sector;
- Authorizes DHS to prioritize order of visa distribution among qualified H-1B workers based on wages offered by workers’ employers;
- Authorizes a pilot program for additional admission of up to 10,000 admissible immigrants whose employment is essential to economic development strategies of local communities (requires labor certification) in order to stimulate economic development;
- Creates new protections for F-1 students specifically at higher education institutions, eliminates requirement of demonstrating that they have a foreign residence that they do not intend to abandon (which would allow dual intent to become an immigrant to the United States);
- Authorizes extension of stay under F, H-1B, L, or O employment-based status if visa petitions or labor certifications have been pending for more than one year, with employment authorization;
- Exempts spouses and children of green card holders from numerical limitations;
- Provides work permits to dependents of H-1B visa holders, and provides H-4 children with more protection from aging out of status;
- Supports and strengthens domestic refugee processing and resettlement capacity for countries in the Western Hemisphere;
- Emphasizes improved smart technology to enhance U.S. southern border security;
- Removes term “alien” from U.S. immigration laws and replaces it with “noncitizen”; and
- Provides for foreign aid to Central America to tackle causes of migration to the United States (investment in English and workforce development programs).
More information on the specifics of these proposed provisions is likely to become available in the coming days. The Biden administration is expected to continue to issue executive orders reversing Trump policies.
Updates on H-1 and L-1 Visa Bar and Litigation
The status of a visa ban barring issuance of new L-1, H-1B, H-2B, and J-1 employment-based visa stamps remains unclear under the Biden administration. Originally, the Trump administration issued a presidential proclamation in June 2020 to halt certain foreign worker immigration to the United States under these popular employment visa categories, citing the economic fallout of the COVID-19 pandemic. After several large business organizations, including the U.S. Chamber of Commerce and the National Association of Manufacturers, brought suit, U.S. District Judge Jeffrey White of the U.S. District Court for the Northern District of California issued an injunction blocking the visa ban both as to the plaintiffs, which are large membership organizations that represent a number of major U.S. employers, and their members.
Under the current status quo, the United States has been allowing the admission of employees on the affected visas if they can demonstrate that they are a member of the plaintiff organizations (an employer can become a member of these nationwide associations and incur these benefits subsequent to the order as long as it is a member at the time of the employee’s visa application and interview). The visa ban otherwise remains in effect and individuals in need of an L, H, or J visa stamp must apply for an exemption on one of several grounds, including work in the national interest.
The visa stamping process has also been complicated by the fact that many U.S. embassies remain closed for routine operations during COVID-19, necessitating grants of emergency requests to obtain a new visa stamp, which are at the discretion of U.S. embassy officials.
On December 11, 2020, the U.S. Chamber of Commerce and a coalition of business groups filed an appellee brief with the U.S. Court of Appeals for the Ninth Circuit, defending the district court's preliminary injunction against implementation of the visa ban. The case remains pending, and the appellate court may decide whether to uphold the preliminary injunction.
On December 31, 2020, President Trump signed a second proclamation that continues the primary ban on H-1B and L-1 visa issuance through March 31, 2021. President Biden has yet to announce a specific plan of action with respect to these visas.
International Travel Bans and COVID-19 Test Requirements
Just before leaving office, President Trump issued an order lifting a number of travel bans that had barred entry to most foreign nationals (including employment-based or business visitors with visas) who sought to enter the United States from the 26 countries of the Schengen Area of Europe, the United Kingdom, Ireland and Brazil. The order was set to become effective on January 26, 2021.
President Biden’s team, however, publicly confirmed its plans to continue the travel bans despite the Trump order. On January 19, President’s Biden’s incoming press secretary, Jen Psaki, responded that the new administration would not lift the restrictions. On Twitter, she reported:
With the pandemic worsening, and more contagious variants emerging around the world, this is not the time to be lifting restrictions on international travel. On the advice of our medical team, the Administration does not intend to lift these restrictions on 1/26. In fact, we plan to strengthen public health measures around international travel in order to further mitigate the spread of COVID-19.
Based on these statements, we do not expect these travel restrictions to be lifted in the immediate future. We continue to monitor new announcements or executive orders in connection to the previously instituted COVID-19-related travel bans affecting Europe, the United Kingdom, Ireland, and Brazil.
President Biden has also issued a travel-related executive order requiring a negative COVID-19 test result for airline passengers traveling into the United States, and mask-wearing for certain forms of domestic interstate travel. On January 21, 2021, the CDC issued guidance requiring all air passengers arriving to the United States from a foreign country to get tested no more than three days before their flight departs and to present the negative result or documentation of having recovered from COVID-19 to the airline before boarding the flight. This order is effective January 26, 2021.
As new changes arrive in the immigration-related employment domain, we will continue to monitor and report on impacts to employers as applicable. Employers should stay aware of rapidly evolving policy guidance and newly issued orders when considering international travel of employees and potential new visas.