How President-Elect Biden’s Immigration Plans will affect Employers?

How President-Elect Biden’s Immigration Plans will affect Employers?

As we begin anew after four years of hell under President Trump’s anti-immigration policies, many are wondering what President-Elect Biden’s Immigration policies will look like. We have some guidance as Biden’s campaign website lists a number of his immigration plans. Furthermore, immigration attorneys are hopeful for a more immigration-friendly Department of Homeland Security, Immigration & Customs Enforcement (ICE), and USCIS. Combining these two things, I have listed below a number of potential, and hopefully probable, changes in immigration law.

Employment-Based Immigration

  1. Repeal the new Prevailing wages through rulemaking and stop defending the Prevailing wage regulations in court. Courts have enjoined their implementation.
  2. Withdraw the regulations on redefining specialty occupation, degrees, and employer/ employee relationships or propose new rules in these areas. Courts have enjoined its implementation.
  3. Rescind President Trump’s April 22, 2020, June 22, 2020 and December 31, 2020 proclamations applying to individuals seeking to enter the U.S. through immigrant/nonimmigrant work visa programs. Some of this proclamation has been enjoined by the courts.
  4. Increase the number of employment-based visas and eliminate country caps on countries through legislation.
  5. Support legislation that treats the spouse and children of green card holders as immediate relatives, therefore, exempting them from caps.
  6. Rescind or alter the regulation, scheduled to go into effect in March 2021, that radically alters the H-1B lottery with the primary emphasis on the wage level offered.
  7. Protect H-4 EADs for H-1B spouses – either through rulemaking or legislation.
  8. Exempt from any cap recent Ph.D. graduates in STEM fields and provide them a green card upon graduation – through legislation.
  9. Rescind/withdraw a proposed rule that would limit the stay of international students.
  10. Create startup visas for foreign-born entrepreneurs by amending Schedule A labor certification to allow start-up entities to “self-sponsor.”

Immigration Compliance/Worksite Enforcement

  1. ICE audits – will likely remain within same range as Trump Administration – 6,500 to 10,000.
  2. ICE Raids of employers – expect these to cease as they ended under President George W. Bush and never were conducted in the Obama Administration.

USCIS

  1. Rescind policy memos that slowed processing, increased RFEs, and not grant deference to previously approved petitions.
  2. Rescind policy that mandates a field office interview for employment-based I-485 adjustment of status cases.

Seasonal/Agricultural Workers

  1. Give agricultural workers a fast-tracked path to obtaining a green card.
  2. Allow seasonal employers in some industries to certify need for workers based on labor market studies.

Although all of these ideas sound great to immigration attorneys, we have been disappointed beforehand by lack of Presidential priority for immigration change, lack of Congressional action, and a difference between immigration attorneys and the administration on needed policies. Hopefully, this time immigration attorneys will be pleased or mostly pleased.
If you are concerned about your company’s immigration compliance, I invite you to read The I-9 and E-Verify Handbook, a book that I co-authored with Greg Siskind, available at http://www.amazon.com/dp/0997083379.

About The Author

Bruce Buchanan

Bruce E. Buchanan is a founding partner at Sebelist Buchanan Law PLLC with offices in Nashville and Atlanta, where he represents employers in immigration and employment/labor law, with a special emphasis on employer immigration compliance Additionally, he is Of Counsel to Siskind Susser. Mr. Buchanan received his law degree from the Vanderbilt University School of Law and served as a senior trial specialist for the NLRB for 20 years. He also served for 12 years as Adjunct Professor at William H. Bowen UALR School of Law. He went into private practice in 2003. Mr. Buchanan is passionate about representing clients on I-9 compliance issues. He is the co-author of the book, I-9 and E-Verify Handbook, which is geared to HR professionals and available at Amazon. He also authors his own blog on employer immigration compliance located at www.employerimmigration.com and is a regular contributor to HR Professionals Magazine. Bruce is the long-time editor of the TBA’S Immigration Law Section newsletter and Labor and Employment Section newsletter. Mr. Buchanan is admitted to practice in Tennessee, Georgia, Florida, and Arkansas as well as the following Circuit Court of Appeals: 5th, 6th, 8th, and D.C. He may be contacted at [email protected] and (615) 345-0266.

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