Biden’s First 50 Days on Immigration

This week marks the halfway point in President Biden’s first 100 days in office. This alert updates Miller Johnson’s clients on some of the most important relevant-to-you actions the administration has taken on immigration matters to date. While a lot of President Biden’s focus has been on humanitarian issues like addressing family separation and asylum procedures, there have been many– less-publicized– actions that impact the business community. Here’s an analysis of what’s happened, and what we can expect in the next 50 days.

ACTIONS ALREADY TAKEN

Travel, Entry and Admission Changes

When the Biden Administration took over in January, it inherited a series of immigration restrictions related to the COVID-19 pandemic, both targeting the spread of the virus itself, as well as restrictions intended to rebuild the U.S.  economy. Some restrictions have been extended, and others remain in place. Below is a highlight of the most critical changes.

• Travel Between U.S. Canada and Mexico (Updated 2/24/2021)  Routine travel between the U.S. and Canada and the U.S. and Mexico has been restricted through March 31, 2021. Exceptions will be made for travel in the national interest.
• Geographic Travel Restrictions (Updated 1/28/2021)  Individuals present in the following countries within 14 days of traveling to the U.S. will not be admitted: Brazil, China, Iran, Ireland, Schengen Area, South Africa, United Kingdom. The ban will remain in effect “until terminated by the president.” Exceptions will be made for travel in the national interest.
• Visa Processing In late December, the Trump administration issued an executive order suspending routine immigrant and non-immigrant visas for individuals who pose a risk to the U.S. Labor Market (Presidential Proclamations 10014 and 10052 respectively). President Biden has rescinded PP 10014 and allowed the resumption of immigrant visa processing, but PP 10052 remains in effect and normal processing of H1B, H2B, L1, J1 and their dependents remains suspended until 3/31/2021.

The Department of State, in accordance with the rescission of PP 10014 has allowed all 2020 approved diversity visa applicants to immediately travel to the United States (despite the notation on the visa indicating that travel is prohibited under PP 10014. For the 2021 Diversity Visa Lottery, applicants should await further instructions from the embassy.)

Other Notable Policy Changes

• Buy American and Hire American 

On January 25, 2021, President Biden effectively revoked President Trump’s Buy American and Hire American Executive Order (“BAHA”).

The BAHA order aimed to increase wages and employment rates for U.S. workers and directed agency heads to issue rules to protect U.S. workers through their administration of the U.S. immigration system. The program also resulted in a number of policy and procedures that made it more difficult to obtain employment-based visas, which actually served to hamstring U.S. employers.

• H1B Policy Changes
  • Computer Programers. Following guidance from the U.S. Court of Appeals for the Ninth Circuit, the Biden Administration rescinded a 2017 Memo on H1Bs for Computer Programmers as a specialty occupation. The 2017 order itself was a rescission of prior policy guidelines, issued in 2000. USCIS has stated that further guidance is forthcoming on how these categories of H1Bs should be determined.
  • Allocation Rules. The Biden Administration delayed the Trump rule that would allocate H1Bs by salary instead of lottery. But see note below on proposed statutory change in the U.S. Citizenship Act of 2021.

PROPOSED AND FORTHCOMING ACTIONS

DOL Rule on Joint Employment

A related immigration matter impacting a number of employers, especially agricultural employers, is the issue of joint employment. The Department of Labor has sent a new rule (not yet public) to the White House for review on the issue of when an employer can be held jointly liable for the actions of a sub-contractor or franchisee. The Trump administration had narrowed that definition, and many have called on the Biden administration for expansion.

Final Rule on Computation of Prevailing Wages

A Trump-era rule proposing significant changes to the computation of prevailing wages (86 FR 3608, 1/14/2021) was set to go into effect on March 15, 2021. The Department of Labor is proposing a delay on the rule until May 14, 2021 to give the Department further time for review. A decision will be forthcoming this week.

Comprehensive Immigration Reform

The Biden administration campaigned on a promise of fundamentally reforming our immigration system “from day 1.” And indeed, on the first day of his Presidency, Biden sent an immigration bill to Congress, The U.S. Citizenship Act of 2021. One month later, the bill was introduced in the House, by Rep. Sanchez (D-CA) and the Senate, Senator Menendez (D-NJ).

You can read the full text of the identical bills here: House Bill, HR 1177 and Senate Bill SB 348.

The bill in its current form has essentially 4 main components:

1. 1.  Pathway to Citizenship.  The most notable component of the immigration legislation is that it provides a pathway to citizenship for millions of individuals already living in the United States (limited to those who were present in the United States as of January 1, 2021), but who lack proper immigration authorization. The pathway provides for an immediate lawful authorization for certain individuals to remain in the U.S. in a new status called Lawful Prospective Immigrant (LPI), which authorizes work and travel, but does not entitle individuals to benefits under the ACA. The individual would be required to remain in valid LPI status for five years, and then would be allowed to obtain Lawful Permanent Resident (LPR) or “green card” status. After three years as an LPR, former LPIs may apply for citizenship, resulting in an eight-year path to citizenship.  Three categories of individuals would be “fast tracked” and may immediately apply for LPR status: Dreamers (children who came to the U.S. under the age of 18), individuals with Temporary Protected Status, and farmworkers. All individuals would be subject to background checks.
   2. Addressing the Root Causes of Immigration.  The bill seeks to address the root causes of immigration by proposals such as a $4 billion investment plan in Central America and setting up refugee processing in that region.
   3. Enhanced Enforcement. The bill contains numerous measures targeting increased enforcement along the border to target drug and human trafficking, with an emphasis on increased technology to aid in enforcement.
   4. Visa Processing Immigration System Improvements. The bill aims to improve the immigration system by clearing backlogs and waitlists for both employment-based and family-based visas.

With respect to employment-based immigration specifically, among other things, the bill would:

• • • • • Raise the total number of employment-based visas available annually by 30,000 (170,000)
        • Allow for unused visas from past years to be allocated now, a number some speculate could be as high as 220,000
        • Eliminate country specific wait times
        • Increase diversity visa allotments from 55,000 annually to 80,000
        • Expand and enhance employment authorization for spouses of H visa holders
        • Proposes a new commission on improving the worker verification process, to be composed of employers, labor unions, and civil rights advocates

The bill also contains two provisions that would impede employment-based immigration. First, the bill contains a provision that would allow the Secretary of the Department of Homeland Security to limit employment-based immigration “in geographic areas or labor market sectors that are experiencing high levels of unemployment.” Second, the bill also reworks the method by which H1B visas are awarded, moving away from a lottery system based on the date of application and instead awarding visas based on a highest to lowest salary schedule.

With respect to family-based visas, among other things, it would remove the cap on spouses and children of lawful permanent residents, allowing them to more easily immigrate with their family members.

The bill also seeks to address backlogs in immigration courts by adding funding for additional judges and removing the 1-year bar on asylum applications.

I-9 Verification Changes

On March 20, 2020, the Department of Homeland Security (DHS) issued a notice extending flexibility in the I-9 verification process during COVID-19. Specifically, DHS allowed for remote verification of identity documents until working conditions returned to “normal.” The Biden administration has so far allowed these changes to remain in tact. However, as vaccine availability increases and workers continue to report to work in person, it is important to note that the flexibiities previously extended, may no longer apply to your work place. Miller Johnson attorneys, through our immigration trade association, has received further clarification on the requirements to date from DHS. Here are a few very important takeaways:

• I-9 verification still required. While flexibility was extended to review documents electronically or remotely, review of the documents is still required.
• Suspension of in-person requirements are only extended to workplaces that are working 100% remotely. If there are individuals coming into your workplace, documents must be reviewed in person.
• There has been no definition of what “normal” conditions may look like in the future that would trigger a universal requirement of physical document review, but employers should think pro-actively about what this review would look like and plan ahead, especially if large amounts of workers have been hired and on-boarded remotely in the last year.

For additional questions on immigration-related matter, please feel free to reach out to Hillary Scholten at scholtenh@millerjohnson.com.