A Tale of Two Administrations: Foreign Workers Look to President Biden for Immigration Reform

Introduction

With the pandemic wreaking havoc across the country and social justice rightfully occupying the spotlight of the last months, the 2020 Presidential Election focused primarily on the issues of COVID-19 response, economic recovery, and criminal justice reform. However, the often-discussed issue of immigration has also experienced notable turmoil, and there is certainly more to come. For decades, policy debaters have disagreed on the correct approach to immigration — should the United States open its borders and welcome high-skilled foreign labor, or should the country favor its own workers at the possible expense of innovation and the risk that companies may offshore their high-skilled activities? Although the debate has been long-running, the country’s lawmakers still vehemently disagree about the right course of action today.

During his time in office, President Trump sought to limit the entry of immigrant workers into the United States and further reduce the overall number of H-1B visa holders already in the country. Created by the Immigration Act of 1990, the H-1B program is the largest visa program for temporary employment of foreign workers who possess specialized knowledge and a bachelor’s degree or higher. H-1B visas are awarded directly to employers on a first-come, first-served basis with an annual cap of 65,000 such visas, plus an additional 20,000 per year for foreigners with graduate degrees from the United States. Demand for H-1B visas has soared in recent years; in each year from 2014–2018 the program reached its limit within a week of the application period opening. However, Trump administration policies have resulted in skyrocketing H1-B denial rates as of late, and the program itself has experienced process delays and further scrutiny over the last four years. Business leaders have repeatedly argued that long-standing restrictions on high-skilled immigration would negatively affect the competitiveness and innovation of businesses as well as the American economy, and they have recently criticized specific measures that aim to do just that.

Let’s Review

On April 18, 2017, President Trump issued the Buy American and Hire American Executive Order, instructing the Department of Homeland Security to propose new rules and guidance that would protect the interests of American workers in administering the immigration system. Focusing specifically on the H1-B program, the order sought reform that would “ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.” Fast forward to June 2020, President Trump signed an executive order restricting foreign nationals from using certain temporary employment-based visas through the end of the year and extending a green card ban that had been enacted a few months prior. This order froze access to new H1-B visas as well as other types used by foreign workers to obtain employment in the United States. Notably, visa holders already in the country were given an exemption from the ban, as were other specific groups of workers.

Moving forward to January 2021, President Trump continued his efforts in the final days of his presidency by promulgating a new rule that would significantly increase the necessary wages for highly skilled workers on H-1B visas. Using a flawed methodology to calculate the prevailing wage, which is supposed to approximate the wages of similarly skilled American workers, the new rule inflates the mandatory minimum amount for certain H1-B holders. Many opponents of the order argue that this change will curtail the ability of employers to access needed high-skilled talent, and they assert that the mandated wage hike may reduce employers’ use of the program to fill entry-level positions. A significant number of new H-1B visas are typically granted to foreign workers who originally entered the United States as students (in 2017, 73% of new H-1B visas granted to foreign workers already in the country went to students). With the new rule taking effect almost immediately, the Department of Labor can hardly issue a correction before American businesses and H-1B employees experience the rule’s negative effects. The light at the end of the proverbial tunnel may be the Biden administration taking over — its spokesperson indicated that President Biden would stop or delay so-called midnight regulations, which would include the new immigration rule as well.

Moving Forward

In contrast to the Trump administration, President Biden’s efforts may lead to an increase in high-skilled foreign workers coming into the United States. The Biden administration plans to send an immigration reform bill to Congress in the near future. The legislation is expected to not only feature a path to permanent residency for undocumented immigrants in the country, but also to clear extensive green card backlogs in the employment-based programs, restore their effectivity, and create a streamlined process for graduates of American universities with advance STEM degrees to obtain permanent residency. Although an increase to the H-1B numerical limit is not expected, the Biden administration will likely address some of the anti-immigration policies implemented over the last four years, and the bill will likely increase the number of green cards available to foreign workers and their spouses.

On January 25, 2021, President Biden withdrew a proposal to disallow dependents of H-1B holders on H-4 visas to work in the country, delivering on his earlier promises to immigrants on an H-1B visa. However, it is not clear whether President Biden will act beyond the removal of recently introduced restrictions on employment-based visas, especially with millions of Americans losing jobs due to the pandemic. Moreover, his early steps seem to indicate that the coming reform may favor a streamlined process for foreign graduates of STEM programs at American universities, essentially bypassing the long-lasting H-1B process, and creating a direct path to becoming a green card holder. As for current and future H-1B workers themselves, President Biden has yet to reverse some of the restrictions implemented by the Trump administration, and those workers would favor positive reform to the H-1B program sooner rather than later as well. Overall, the recent change in administration may offer a spark of hope for foreigners trying to navigate their way to permanent residency in the United States, but President Biden’s next moves will largely indicate whether any widespread reform is likely to occur during his tenure in the White House.

"Residency Paperwork for Argentina" by blmurch is licensed under CC BY 2.0

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By Roman Buss.

J.D. Candidate, 2022

Roman is currently a 2L and O’Connor Honors Fellow at the Sandra Day O’Connor College of Law. Before law school, he earned his Bachelor degrees in Economics and Political Science from St. Norbert College near Green Bay, Wisconsin. A native of Prague, Czech Republic, Roman enjoys playing sports, cheering on the Packers, and traveling — preferably not during a pandemic.

The opinions expressed herein are those of the individual contributors to the ASLJ Blog and should not be construed as the opinions of the Arizona State Law Journal or the Sandra Day O’Connor College of Law at Arizona State University.