In February, we outlined some immediate and anticipated changes in the business immigration environment after the Biden Administration took office. Now that several months have passed and the Administration has had time to implement its policies, it is worth revisiting these issues.
In its waning days, the Trump Administration introduced a number of regulations that would have restricted employment-based immigration programs in various ways. Upon taking office, the Biden Administration instituted a 60-day freeze on all pending and proposed regulations, including these immigration-related rules, in order to review their impact. After review, some of the regulations have been withdrawn or vacated while others have been delayed for further study and review.
After review, the Biden Administration stopped the implementation of the following final and proposed regulations:
- The public charge rule had redefined the term “public charge” and imposed more stringent criteria on foreign nationals—both immigrants and nonimmigrants—to demonstrate that they overcome this ground of inadmissibility. The rule has now been vacated, but had been previously been enjoined from being implemented due to ongoing litigation. U.S. Citizenship and Immigration Services (USCIS) has released new versions of forms that had requested additional information pursuant to this rule, including the Form I-129 (Petition for a Nonimmigrant Worker), Form I-485 (Application to Adjust Status), and Form I-539 (Application to Extend/Change Nonimmigrant Status). The previous public charge regulations have been restored.
- A proposed rule that would have dramatically tightened eligibility requirements for H-1B visas has been withdrawn.
The two following rules, both of which notably deal with required wages paid to foreign nationals under employment-based visa programs, have not been canceled but have been delayed. The lack of further action at this stage could indicate that the Biden Administration is considering some changes to the wage-related aspects of the programs.
- The effective date of a Department of Labor (“DOL”) rule that aims to increase the minimum wages paid to certain foreign nationals has been delayed until November 14, 2022. As currently written, the new regulation would significantly increase the prevailing wages paid to foreign nationals under the following visa programs: H-1B (temporary specialty occupations), H-1B1 (temporary specialty occupations for Singaporean and Chilean nationals), E-3 (temporary specialty occupations for Australian nationals), and PERM Labor Certification (part of the process for many employment-based immigrant visas, or “green cards”).
- The implementation of a Department of Homeland Security regulation that would replace the random H-1B lottery with a wage-based selection process has been delayed until at least December 31, 2021. It remains to be seen if and when this rule will go into effect.
In its earliest days, the Biden Administration took executive and agency actions to stop and reverse policies of the Trump Administration that set up barriers to the employment-based immigration system, including revoking the “Buy American, Hire American” Executive Order, withdrawing a DOL bulletin that would have revised its interpretation of “employers” for H-1B workers, and rescinding a policy memorandum that restricted which computer-related occupations qualify as H-1B-eligible “specialty occupations.”
Consistent with President Biden’s Executive Order 14012, “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans,” additional policy changes have followed. One of the most important for employment-based immigration programs is the reinstatement of long-standing USCIS guidance directing officers to generally defer to prior determinations of eligibility when adjudicating extension requests involving the same facts. After this policy guidance was rescinded in 2017, rates of Requests for Evidence and other government challenges to extension petitions increased dramatically and caused great uncertainty as to the applicable legal and evidentiary standards applied by USCIS. The reinstatement of this deference policy is a welcome change for employers and their foreign national employees.
Beginning May 17, 2021, USCIS has also temporarily suspended biometrics requirements for dependents who seek to extend or change their status to H-4, L-2, and E by filing a Form I-539. We hope that the suspension of this requirement will lead to improved processing times for affected applications as well as related employment authorization applications (Form I-765).
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