Some key changes include – revoking the Trump administration’s discriminatory travel bans, putting a freeze on certain regulations and presenting a bill for providing a citizenship path to undocumented individuals and streamlining and cutting back logs in the green card programs, among other things. These changes are in the form of memos, executive orders, proclamations and a new immigration bill.
Executive Orders, Memos & Proclamations
President Biden issued a proclamation that rescinds two travel bans that were issued by the former administration which barred nationals from certain Muslim -majority and African countries from entering the United States. However, the COVID related travel bans affecting H and L visas among others and certain immigrant visas (both extended until March 31, 2021) have not been revoked as yet. It is anticipated that announcements about these will be made soon.
An important change by the Biden administration that will likely put a pause on, or ease, certain obligations imposed by the Trump Administration with regard to the H-1B program is the freeze on certain regulations. The administration issued a memorandum directing the immediate withdrawal of all rules pending at the Federal Register that have not been published, as also requiring agencies to “consider” postponing the effective dates for regulations that have been published, but not in effect, for 60 days from the memo’s date.
As a result, the Department of Homeland Security’s (DHS’) final rule that sought to redefine the H-1B employer-employee relationship and imposed LCA and H-1B petition requirements on third parties (end-clients), that hasn’t been published as yet, will no longer go into effect.
Further, the DOL withdrew the two pieces of guidance that it had posted in support of this DHS’ requirement from end clients.
However, the DHS rule allocating H-1Bs based on wage levels, and the Department of Labor’s (DOL’s) rule increasing prevailing wages for certain workers, which are not yet in effect, could potentially be withdrawn, or its implementation, postponed. If these are not withdrawn or rescinded, they will most likely apply to the FY 2022 H-1B CAP filings.
The administration has also issued memos on preserving and fortifying the Deferred Action for Childhood Arrivals (DACA) program and a proclamation that terminates the national emergency with respect to the U.S. southern border and redirects funds diverted to border wall construction.
New legislation providing the use of technology to increase enforcement at the border is expected to be presented to Congress soon. Another executive order also revoked prior presidential actions that excluded undocumented immigrants from participating in the census.
Another important action, by the new administration, was overturning the policy that broadened the authority of government agents to find and deport unauthorized immigrants without prioritization. The DHS will put certain deportations on hold for 100 days and implement interim civil enforcement policies.
Additional executive actions on immigration are expected on January 29, 2021.
The New Immigration Bill
President Biden has sent an immigration bill to Congress (New Bill) and a formal announcement of this was made by the White House. The New Bill seeks, among other things, to modernize the U.S. immigration system. The key changes as summarized from the White House announcement and public interviews of members of the Biden administration, including Vice President Harris are set out below:
- Pathway to citizenship for an estimated 11 million undocumented individuals in the country, prior to January 1, 2021 and legal permanent residence, for certain individuals, after five years and for U.S. citizenship after an additional three years – a faster path to citizenship than in previous immigration bills;
- Shorter pathway to citizenship for people with temporary protected status and DACA recipients as also likely for certain front-line essential workers;
- Recapture and use of previously unused visas from past years, clearance of backlogs, reduction of wait times, elimination of per country caps for employment-based green cards – a move that would benefit thousands of Indian IT professionals whose current wait period for legal permanent residency runs into several decades;
- Exemption of spouses and children of green-card holders from the annual green card quota
- Granting conditional status with employment authorization to other, qualifying unauthorized immigrants for five years with the ability to apply for citizenship after a further period of three years;
- Increase in the number of family-based visas to be granted each year;
- Elimination of the three-year and ten-year unlawful presence bar;
- H-4 visas holders to be granted work authorization;
- Children, of H-1B visa holders who are on the green card track, to be protected from aging out;
- Potential pathway for eligible STEM graduates of U.S. universities to remain in the U.S.;
- Green cards for workers in low wage industries;
- Increase in the number of diversity visas from 55,000 to 80,000 each year;
- Changes to the immigration court system to reduce backlogs, probably by increasing the number of judges;
- Improvements to some other visa programs, like the U (visas available to qualifying victims of crimes and their immediate family members) and T (visas available to qualifying victims of human trafficking and immediate family members) programs.
Benefits to Indian Employees Under the New Bill
The most important changes that would have an impact on Indian H-1B workers and other green card candidates from India is the abolition of per-country caps on employment visas. In addition, there is no proposal to increase the number of H-1B or other employment visas.
But the New Bill seeks to eliminate dependents of employment based green card beneficiaries, from being counted towards the cap and this will free up thousands of visas, leading to shorter green card queues. Another change that will be welcome by this same group of beneficiaries is the proposed protection of children from aging out while the principal beneficiary waits for a visa number.
Finally, H-1B workers will be delighted if the provision in the New Bill granting work authorization to their H-4 spouses as set out in the New Bill, is passed into law.
Future of the New Bill
Even though there is a Democratic President and both the chambers of Congress have a Democratic majority, the New Bill will likely face a lot of opposition from conservative voters, especially since the Democrats hold a slim majority in each chamber. In addition, for the New Bill to be passed into law, according to some estimates, it will need the support of at least 10 Republican Congressmen. It could take several months, a lot of negotiating and modifications to the New Bill before it is passed into law, but it is a huge and much needed step in the right direction.
The authors are managing partner and associate partner at LawQuest.