In January 2021, President Biden assumed the White House with, among other goals, reforming the country's immigration system. Nearly a year into his presidency, President Biden has made some changes to the U.S. immigration system, which range from changes within the various immigration agencies to larger developments.
The president has introduced adjustments primarily by using executive orders and proclamations to reverse Trump-era policies.
As 2021 winds down, we are looking back at some key updates in U.S. employment-based immigration.
COVID-19's Ongoing Impact on Immigration
Carrying over from 2020, one of the biggest issues that the Biden administration faced in 2021 was the ongoing COVID-19 pandemic. Many existing travel restrictions that were put in place by the Trump administration were extended in 2021 due to ongoing health concerns.
In the fall, foreign travelers and human resources teams received good news when the government announced that fully vaccinated travelers from countries impacted by prior travel restrictions would be able to enter the U.S. starting on Nov. 8, 2021.
However, the emergence of the Omicron variant led to the U.S. government imposing new travel restrictions. For additional information that is being consistently updated, please see Envoy's write up.
The pandemic has also had an impact on application backlogs. Existing application backlogs have increased even more during the pandemic, which has created an even longer wait time for applicants eager to enter the U.S.
On the flip side, the pandemic has introduced some benefits. For example, U.S. Citizenship and Immigration Services (USCIS) provided flexible measures for document review and verification, which has expedited hiring processes and alleviated the need for cumbersome paperwork-based inspection processes. However, these are only a handful of examples of COVID-19's impact on immigration. Be sure to head to Envoy's Resources Center for additional information.
Finally, U.S. embassies and consulates around the world have slowly started to resume regular services, such as visa processing.
Federal Judge Sets Aside H-1B Lottery Rule
Shortly before January 2021, the Trump administration proposed a rule that would have significantly affected H-1B applicants. The proposed rule would have drastically changed the H-1B selection process from a random lottery to a selection process based on wage. The new system ultimately would have favored higher-wage earners by awarding more visas to people who were in the highest two tiers of the Department of Labor's (DOL) wage-based system.
In September 2021, just months before the new H-1B rule was scheduled to take effect, District Judge Jeffrey White ruled that Chad Wolf was not the lawful Acting Secretary of Homeland Security when DHS issued the H-1B lottery prioritization rule that would have changed the H-1B selection process from a random lottery-based selection to a wage-based process.
USCIS Removes Public Charge Rule
The Biden administration also addressed the Public Charge Rule in 2021. The Trump-era Public Charge Rule classified foreign nationals as a "public charge" if they had received one or more public benefits such as housing subsidies, healthcare or cash assistance in the past as dictated by the rule. Individuals could be denied a visa or green card if they had or were likely to need public assistance in the future.
This year, USCIS issued a final rule removing regulatory text from the Code of Federal Regulations that the Department of Homeland Security (DHS) promulgated in the August 2019 Public Charge rule. USCIS has also restored regulatory text to its original state prior to the issuance of the August 2019 rule.
We expect additional updates on the Public Charge rule, likely in 2022, and will provide updates as necessary.
Signing of Executive Orders
On his first day, President Biden signed six executive orders that focused on immigration
One of those executive orders ended the prior administration's travel restrictions that barred travelers from Muslim-majority countries from entering the U.S. This decision lifted certain restrictions imposed on Muslim-majority countries, including Iran, Iraq, Nigeria, Myanmar, Kyrgyzstan, Eritrea, Somalia, Sudan, Syria, Yemen and Libya.
Expansion of Work Authorization Eligibility for L-2, H-4 and E Dependents
As the end of the year approaches, certain dependents can celebrate good news following a recent settlement in November (Shergill, et al. v. Mayorkas) that directs USCIS to expand work authorization eligibility for L-2, H-4 and E dependents. The benefits depend on case-specific circumstances, and we encourage L-2, H-4 and E dependents to consult their attorneys to determine the availability of benefits under the new paradigm.
The latest change to work authorization follows an earlier action in January 2021 when the president rescinded a proposed regulation titled "Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization." The proposed regulation, which was issued in 2019, was pending at the time that it was withdrawn by the Biden administration. The regulation would have reversed a final rule extending employment authorization eligibility for certain H-4 dependent spouses of nonimmigrant H-1B workers.
Immigration Legislation Stalls in Congress
As discussed earlier, President Biden entered the White House with, among other goals, to reform the immigration system on the employment- and family-based side. But any large reform will likely require Congressional support to pass legislation.
There are several pieces of immigration legislation pending in Congress. One of the most noteworthy is the U.S. Citizenship Act of 2021. Rep. Linda Sanchez (D-CA) formally introduced the bill in the House of Representatives in February 2021.
The bill proposes sweeping immigration reform, such as proposing to reform family-based and employment-based immigration by recapturing millions of unused visas to reduce green card backlogs and eliminate per-country visa caps.
The Citizenship Act isn't the only piece of immigration legislation in Congress. On Feb. 4, 2021, Sens. Dick Durbin (D-IL) and Lindsey Graham (R-SC) introduced the 2021 Dream Act. This bill would apply to qualified persons brought to the U.S. as children and is intended to provide a path to conditional residency, permanent residency and citizenship for DREAMers.
Democrats are attempting to include immigration provisions in a potential reconciliation bill known as Build Back Better. According to The Washington Post, House Democrats included several immigration provisions in their version of Build Back Better. This piece of legislation is now in the hands of the Senate.
However, The New York Times points out that Senate Democrats have previously run into issues including immigration provisions in the reconciliation bill. The Senate Parliamentarian has twice ruled that Democrats cannot include immigration provisions within the proposed reconciliation bill.
Whether proposed immigration legislation will become law remains to be seen.
Other Government Changes
The Biden administration has also made some smaller changes within various government agencies. The administration has granted more agency deference, particularly to USCIS such as making changes to the "Blank Space" rule. For more information on the "Blank Space" rule, please see Envoy's existing write-up.
USCIS also reinstated its policy of deference to prior determinations when adjudicating extension requests. The agency rescinded a 2017 policy memo for H-1B computer-related occupations.
USCIS also updated its Policy Manual with three primary changes to improve immigration services, which are expedited processing, RFEs and NOIDs and EADs. More so, USCIS announced that it will continue the International Entrepreneur Program.
Much has changed for U.S. immigration policy in 2021, and additional changes will likely take place in 2022 and beyond. The Biden administration has rolled back some policies put in place by previous administrations, and it has amended some longstanding policies within U.S. immigration agencies.
Originally published 7 December, 2021
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