The Biden administration will have its hands full undoing much of the Trump administration’s immigration activity. First up will be fixing the substantial immigration backlogs, restoring refugee and asylum programs, and focusing on USCIS’ financial woes. Given these crises and the crowding-out effects of the ongoing pandemic, it is unclear when employment-based immigration issues come to the fore. And, perhaps more critically, it remains to be seen which actions the Biden administration will take on work visas, particularly H-1B high-skilled visas and L-1 visas for intracompany transfers.
Several of the Trump administration’s regulatory attempts to limit H-1B visas, which HR Policy opposed, have been rebuffed by federal courts. It is worth noting, however, that the rulings primarily addressed the process by which the rules were established, not the substance of the rules themselves. The result: the rules may be re-introduced with the normal 60-day notice and comment period before being finalized (as opposed to immediate enactment attempted by the Trump administration). At this point, the prior regulations have been reinstated. Going forward, it is unclear what the Biden administration’s approach will be. Biden’s platform called for establishing a wage-based allocation process for temporary foreign workers and ensuring employment-based visas are aligned with the labor market and not used to "undermine wages" or "disincentivize recruiting U.S. workers" for in-demand occupations. Further proposed regulations may very well be on the way. In addition, the number of H-1B visa petitions approved fell every year of Trump’s presidency, while the percentage of petitions that received a “request for evidence” nearly doubled. Whether the Biden administration will continue the Trump administration’s scrutiny remains to be seen.
Employment-based green card caps—"so you’re saying there’s a chance”: In December, the Senate unanimously approved legislation that would remove the per-country cap on employment-based green cards. Under current law, no more than 7% of employment-based green cards can be issued to any one country. The move would help reduce the backlog of applications, especially for immigrants on H-1B visas from India. However, Sen. Mike Lee's (R-UT) bill places a cap on H-1B workers who can obtain green cards to 50% of the total number of employment-based immigrants admitted in a fiscal year. This and other changes conflict with the House version of the bill, passed in July 2019, and casts into doubt whether the bills can be merged in January. "Unfortunately the provisions sent to the House by the Senate yesterday most likely make matters worse, not better," House Immigration and Citizenship subcommittee Chair Zoe Lofgren (D-CA) said.
DACA could be a focus in Congress: President-elect Biden’s pick for DHS Secretary, Alejandro Mayorkas, was the author of the Deferred Action for Childhood Arrivals program in the Obama administration. In addition, President-elect Biden has been vocal about his support of the program, which the Trump administration had tried and failed to end. However, just two weeks after the Trump administration said it had fully restored the Deferred Action for Childhood Arrivals program following being ordered to do so by a federal court, a federal judge in Texas heard arguments in a case questioning DACA’s legality. If Texas Attorney General Ken Paxton and several other state attorneys general are successful, the program will be dismantled over the next two years. “If the nation truly wants to have a DACA program, it is up to Congress to say so,” Judge Hanan wrote in a previous ruling. Congress has been considering various DACA measures since 2001. The most recent version, The American Dream and Promise Act, passed the House but failed to be taken up in the Senate. Sixty votes would be needed to overcome a likely filibuster from anti-DACA Republicans.