UNITED STATES: Biden Administration Immigration Initiatives

January 22, 2021


On its first day in office, the Biden administration acted to reverse several of the previous administration’s immigration policies.

Regulatory Freeze Pending Administration Review

The White House issued a memorandum directing all federal agencies to immediately withdraw pending regulations that have not yet been published in the Federal Register and to consider postponing for 60 days the effective dates of regulations that have been published but have not yet taken effect. Impacted regulations include those advanced by US Citizenship and Immigration Services (USCIS) and the Department of Labor (DOL) in the weeks following the election.

  • The USCIS rule modifying the H-1B cap selection process to prioritize high-wage earners scheduled to take effect 9 March 2021 may be postponed until 21 March 2021, making it less likely to be implemented in time for the fiscal year (FY) 2022 H-1B cap selection process.
  • A DOL rule dramatically increasing prevailing wage requirements for H-1B and E-3 temporary visas and PERM labor certification sponsorship, reissued by DOL on January 14, 2021 and set to take effect 15 March 2021, is also now suspended. Under the rule, implementation of the new prevailing wage scheme would occur as of 1 July 2021, outside the 60 day moratorium period. As a result, it is not clear whether this rule will be covered by the White House memorandum. An earlier version of the rule, published in October 2020, was struck down by a federal court as unlawful, and similar legal challenges are expected if the re-issued regulation remains in place.
  • A rule aimed at amending how USCIS would determine whether there is an employer-employee relationship for the purpose of H-1B sponsorship was signed on 14 January 2021, but was not published. As such, it has been withdrawn. The corresponding DOL guidance and policies, set to take effect 180 days from 15 January 2021, have also been withdrawn.

Travel Bans

  • President Biden signed a Proclamation on Ending Discriminatory Bans on Entry to the United States, revoking Trump era executive orders and proclamations imposing visa restrictions on nationals from predominately Muslim-majority and African countries. The proclamation directs the Department of State to take action through its Embassies and Consulates to resume visa processing for impacted individuals and to develop a plan to redress visa denials and rejections issued under the prior bans.
  • Just before leaving office, the Trump Administration announced a 26 January 2021 termination date for the COVID-19 regional travel bans in place for individuals traveling to the US from Europe, the United Kingdom, Ireland and Brazil. Notably, 26 January is the same day that CDC international traveller COVID testing requirements take effect. However, it has been widely reported that the Biden administration intends to keep the COVID-19 regional travel bans in place along with the CDC’s COVID testing requirement for all international travel to the US.

DACA

  • President Biden issued a memorandum directing the Secretary of Homeland Security and the Attorney General to take all action necessary and appropriate to preserve and fortify the Obama-era Deferred Action for Childhood Arrivals (DACA) program. The DACA program defers deportation of certain undocumented immigrants brought to the US as children, often referred to as “Dreamers,” and provides work authorization. The prior administration spent years trying to rescind the DACA program, but was ultimately constrained from doing so by the US Supreme Court. Currently, USCIS instructions provide that eligible individuals may submit first-time requests for DACA classification as well as requests to renew DACA classification and extend work authorization.

Immigration Legislation

The Biden Administration introduced an immigration reform bill, the US Citizenship Act of 2021, which includes proposals to:

  • Create a path to earn permanent residence and citizenship for certain undocumented individuals. Individuals would apply for legal status or green card lawful permanent resident status for five years and then for more permanent green card status after three years. They would need to pass background checks and pay taxes. Dreamers, TPS holders, and agricultural immigrant workers who meet specific requirements are eligible for green cards immediately under the legislation. Applicants must be physically present in the United States on or before Jan. 1, 2021.
  • Reducing Family Visa Backlogs. The proposal would clear backlogs, recapture unused visas, eliminating lengthy wait times.
  • The proposal would allow immigrants with approved family-sponsorship petitions to join family in the United States in a temporary status while they wait for green cards to become available.
  • Employment-Based immigrant backlogs. This proposal would clear employment-based visa backlogs, recapture unused visas, and eliminate per-country visa caps. The proposal would exempt graduates of U.S. universities with advanced STEM degrees from immigrant visa caps.
  • The proposal creates a pilot program to stimulate regional economic development, by giving DHS the authority to adjust immigrant visa numbers based on economic conditions.

Our Advice

Employers who may be affected are encouraged to contact a Newland Chase immigration specialist for case-specific advice.

For general advice and information on immigration and business travel to the US, please contact us.