Articles

January 18, 2021

How Will President-Elect Biden’s Immigration Plans Affect Employers?

As we begin anew after four years under President Trump’s anti-immigration policies, many are wondering what President-Elect Biden’s Immigration policies will look like. We have some guidance as Biden’s campaign website lists a number of his immigration plans. Furthermore, immigration attorneys are hopeful for a more immigration-friendly Department of Homeland Security, Immigration & Customs Enforcement (ICE), and USCIS. Combining these two things, I have listed below a number of potential, and hopefully probable, changes in immigration law.

Employment-Based Immigration

1. Repeal the new prevailing wages through rulemaking and stop defending the prevailing wage regulations in court. Courts have enjoined their implementation.

2. Withdraw the regulations on redefining specialty occupation, degrees, and employer/employee relationships or propose new rules in these areas. Courts have enjoined its implementation.

3. Rescind President Trump’s April 22, 2020, June 22, 2020 and December 31, 2020 proclamations applying to individuals seeking to enter the U.S. through immigrant/nonimmigrant work visa programs. Some of this proclamation has been enjoined by the courts.

4. Increase the number of employment-based visas and eliminate country caps through legislation.

5. Support legislation that treats the spouse and children of green card holders as immediate relatives, therefore, exempting them from caps.

6. Rescind or alter the regulation, scheduled to go into effect in March 2021, that radically alters the H-1B lottery with the primary emphasis on the wage level offered.

7. Protect H-4 EADs for H-1B spouses – either through rulemaking or legislation.

8. Exempt from any cap recent Ph.D. graduates in STEM fields and provide them a green card upon graduation – through legislation.

9. Rescind/withdraw a proposed rule that would limit the stay of international students.

10. Create startup visas for foreign-born entrepreneurs by amending Schedule A labor certification to allow start-up entities to “self-sponsor.”

Immigration Compliance/Worksite Enforcement

1. ICE audits – will likely remain within same range as Trump Administration – 6,500 to 10,000.

2. ICE raids of employers – expect these to cease as they ended under President George W. Bush and never were conducted in the Obama Administration.

USCIS

1. Rescind policy memos that slowed processing, increased RFEs, and not grant deference to previously approved petitions.

2. Rescind policy that mandates a field office interview for employment-based I-485 adjustment of status cases.

Seasonal/Agricultural Workers

1. Give agricultural workers a fast-tracked path to obtaining a green card.

2. Allow seasonal employers in some industries to certify need for workers based on labor market studies.

Although all these ideas sound great to immigration attorneys, we have been disappointed beforehand by lack of Presidential priority for immigration change, lack of Congressional action, and a difference of opinion between immigration attorneys and the administration on needed policies. Hopefully, this time immigration attorneys will be pleased or mostly pleased.

If you are concerned about your company’s immigration compliance, I invite you to read The I-9 and E-Verify Handbook, a book that I co-authored with Greg Siskind, available here on Amazon.

Bruce Buchanan is a Partner at Sebelist Buchanan PLLC. Mr. Buchanan is admitted to practice in Tennessee, Georgia, Florida, and Arkansas, and before the U.S. Court of Appeals for the Fifth, Sixth, Eighth, and D.C. Circuit.