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Biden Brightens Immigration Outlook, H-1B Visa Details TBD

Photo by Katie Moum on Unsplash

President Biden Brightens Immigration Outlook

It feels like a cloud has been lifted from the immigrant community and everyone who serves it.

Last November I mentioned that the Trump Administration enacted over 400 immigration policy changes during their tenure. The changes added burdens to visa petitions, delayed processing, and made life more challenging for everyone in the immigration community.

We were optimistic that once the Biden Administration took office the onslaught would stop and our community would get some relief.

Our optimism was substantiated on Day One.

Executive Order Highlights

President Biden went from the swearing-in ceremony to his office and began signing a slew of prepared executive orders.

Some of the orders that affect the immigrant community include:

  • revocation of the Muslim and African Travel bans;
  • the preservation and plans to “fortify” the Deferred Action for Childhood Arrivals (DACA) program;
  • an end to the “national emergency” at the southern border;
  • cessation of border wall construction; and
  • a halt to former President Trump’s plan to exclude noncitizens from the census and the apportionment of congressional representation.

The travel bans that have been put in place are COVID-19 related.

President Biden used his executive orders to stop or reverse Trump’s executive orders, but knew that to make more permanent changes to U.S. immigration policy he would need legislative support. He delivered his bill, the U.S. Citizenship Act of 2021, to Congress on his first day seeking those changes.

U.S. Citizenship Act of 2021

This bill would modernize the country’s immigration system with a major overhaul. The new system would provide a path to citizenship for unauthorized immigrants and reform both family-based and employment-based immigration policies.

Dreamers, Temporary Protected Status (TPS) holders, and farmworkers could apply for green cards immediately and for citizenship after three years. Other unauthorized immigrants could apply for temporary legal status immediately, for green cards after five years, and for citizenship if they qualify three years later.

The bill would eliminate the 3-year and 10-year unlawful presence bars that kept families apart. Lawful permanent residents would be able to have their spouses and children included without being subject to the cap. Measures would be put in place to eliminate family-based immigration backlogs, to reduce wait times, and to recapture lost visas.

Similar measures would occur for employment-based immigration to eliminate backlogs, reduce wait times, and recapture lost visas. H-1B holders’ spouses would get employment authorization and their children would be protected from aging out of the system.

The Diversity Visa Program would increase its lottery to 80,000 visas from the current 55,000.

The U.S. Citizen Act of 2021 would also implement the more welcoming and compassionate term “noncitizen” in immigration policies, instead of the word “alien” that appears now.

The H-1B 2022 Filing Season

While Biden’s first day was uplifting, there is only so much his administration can do immediately.

As I write this, neither Biden’s pick to head the Department of Homeland Security, Alejandro Mayorkas, nor his nominated Secretary of Labor, Marty Walsh, have been confirmed by the Senate.

They and their teams need time to review individual policies and procedures to make further changes.

This applies to the upcoming H-1B lottery.

We don’t yet know if USCIS will stay with the March 1 lottery application deadline they used last year, or push the deadline later.

We suspect they will use the electronic filing system they instituted last year because we have not heard otherwise and it seemed to go pretty smoothly. But we don’t know.

Perhaps most vexing, we are waiting to hear what the administration will do with the regulation for higher wages to be favored in the employer registration selection system, which was issued on January 8, 2021 and is slated to go into effect on March 9.

Despite all this uncertainty, the H-1B lottery will happen this spring and we want our clients to be prepared. If you are planning to file an H-1B petition, please contact me as soon as possible so we can get started to ensure you can enter when the lottery occurs.