H-1B Revamp Languishes in Biden’s Unfinished Immigration Agenda

H-1B regulations codifying prior deference policy still pending Backlog of work permits threaten employment eligibility The Biden administration has only until the start of the new year to wrap up rulemaking on high-skill employment visas and put more staff behind a steep backlog of work permits, among other items still on its to-do list. With only two months until Donald Trump’s inauguration Jan. 20, the White House will have to target efforts to get rules over the finish line, priorities that are getting a final push from immigrant advocacy groups and business immigration practitioners. The Trump administration will focus on immigration enforcement, so those groups want to see Biden officials take any remaining steps they can to buttress access to visas for foreign talent and legal work authorization for immigrants with temporary status. Organizations like the American Immigration Lawyers Association are also pressing the administration in public letters and meetings with agency officials to make stateside visa renewal options for H-1B workers permanent, and to extend relief for immigrants that the incoming administration has signaled it will scale back like Temporary Protected Status. “We’re doing as much as we can to protect some of the wins that we’ve had in this administration,” said Shev Dalal-Dheini, director of government relations at the American Immigration Lawyers Association. In recent weeks, the administration has made progress on rules closely watched by business immigration practitioners, including the announcement of a temporary final rule authorizing the release of 64,000 supplemental seasonal non-farm work visas. It’s also sent a rule adding new worker protections for H-2A and H-2B visa programs to the White House for review. But its heaviest remaining regulatory lift will mean finalizing plans to streamline the visa program most typically used by employers to hire international college grads or key foreign talent for specialized occupations. High-skilled Workers The Biden administration over a year ago released a proposal to revamp the annual lottery system for H-1B specialty occupation visas and add more flexibility for many users of the program. While it completed the lottery overhaul this past spring to give each prospective worker an equal chance of selection, the rest of the proposed changes remain pending. The proposal was controversial among immigration attorneys who said in public comments on the rule that a provision that would tie a foreign worker’s field of study to their area of employment could make it much harder for many H-1B petitions to get approval. That language alone, if not dropped in the final rule, is enough for some to call for the rule’s withdrawal. Leaving it in the final rule would allow for the “invisible wall” to immigration benefits under the first Trump term even easier to erect again, said Tahmina Watson, an attorney at Watson Immigration Law PLLC. Provisions welcomed by immigration lawyers include codifying deference to prior agency decisions on visa petitions. That policy significantly reduces the workload of visa adjudicators by allowing them to extend previously approved beneficiaries of employment-based visas without additional scrutiny. A decision by the Trump administration to drop the policy—reversed by USCIS four years later— resulted in added wait times and requests for evidence from the agency. The rule would also lower the bar for nonprofit research organizations to secure cap-exempt H-1B visas without entering the annual lottery, and make it easier for recent college graduates to change status from a student visa to an H-1B without interruption. USCIS would have to publish the H-1B rule in the Federal Register by mid-December because of a statutory requirement that final regulations don’t become effective in less than 30 days absent an exception like an emergency. The agency didn’t respond to a request for comment on plans to finalize the regulations. “If this rule were finalized before the next administration, then it would make on the whole significant improvements to the H-1B process,” said Bo Cooper, a partner at Fragomen, Del Rey, Bernsen & Loewy LLP. H-1B workers are also anxious to see the State Department restart a pilot program allowing them to renew visas in the US and skip appointments at foreign consulates that could delay their return for weeks or months if they travel abroad. A spokesperson said the agency is still analyzing results of a pilot that concluded in April, but had no announcements to make about a possible expansion. Backlogs, Temporary Protections Both businesses and Democratic lawmakers led by Sen. Elizabeth Warren (Mass.) began pressing USCIS to prioritize visa backlogs well before the November elections. Wait times for new work permits and renewals are the top concern for members of the Asylum Seekers Advocacy Project, said Conchita Cruz, ASAP’s co-executive director. “They’re worried about being able to continue supporting themselves and their families here in the US while their asylum applications are pending,” she said. Immigrants with a range of visa statuses or humanitarian protections have to apply for employment authorization documents. In many states, their access to health insurance or drivers licenses, not just work eligibility, is tied to the validity of those documents. A spokesperson for Warren said there has been no response from USCIS on recent progress on the backlog. A spokesperson for the agency said USCIS has processed a record number of work permits in the past year. It’s also expanded online filing options and extended the duration for certain applicants from two to five years, they said. Still, a large swathe of immigrants could lose work eligibility and legal status in the country without action by the DHS in the coming weeks, advocates warn. More than 40,000 recipients of Deferred Action for Childhood Arrivals have renewal applications pending at USCIS. Another 650,000 people with removal protections and employment authorization through Temporary Protected Status come from countries whose designations expire within the first six months of the Trump administration—including some the incoming administration has promised to drop from the program. An influx of new work authorized immigrants through pathways like TPS and parole have been credited with boosting economic growth. Renewing those DACA grants and extending TPS protections for an additional 18 months for countries like El Salvador, Nicaragua, and Haiti are among the steps Biden’s DHS should take to shield immigrants from indiscriminate enforcement, said Adriel Orozco, senior policy counsel at the American Immigration Council. “So many folks are potentially at risk of losing those protections and their work permits that it’s going to put a lot more strain on communities across the country,” he said. For more information, visit us at https://www.beverlyhillsimmigrationlaw.com/.