In a dramatic reversal of the past four years, President Joe Biden has made—and passed—sweeping changes to US immigration policies.
Joe Biden promised to ‘restore the faith in the United States legal immigration system and strengthen the integration and inclusion efforts for new Americans.’
With the ink barely dry on his inauguration papers, Biden made it his priority to undo many of the immigration policies put in place by the previous administration. Keen to change the global reputation of the US on immigration, his changes impact everything from the language used in filings to the length of time it takes to receive visas and green cards.
The tone of America’s voice on immigration is shifting quickly. Biden referred to the language used in immigration law as ‘dehumanizing’. No longer will the term Alien be used. Instead, the President proposes to replace it with the term “non-citizen”.
Among the most significant actions, is Executive Order 14012, issued on February 2, 2021. This order states that the authorities and relevant agencies must conduct a full top-to-bottom review of the existing regulations, policies and guidance that created barriers to the US immigration system. Immigration lawyers need to be agile and ready to act on a host of both simple and fundamental changes that will likely result from this review in the months and years ahead.
Meantime, a host of changes are already in place:
The Citizenship Act
The US Citizenship Act of 2021, introduced in the house and senate on February 18, 2021, focuses on providing a path for citizenship for up to 11 million undocumented Americans, as well as improving the conditions for the temporary protected status of TPS and Deferred Action for Childhood Arrivals (DACA).
The Public Charge Rule
In 2018/19, the Trump administration expanded the Public Charge rule to include a ‘wealth test’ and an additional Form I-944 (Declaration of Self Sufficiency) for all Adjustment of Status (AOS) applications for a green card. This rule and Form I-944 are no longer in effect, and individuals do not have to respond to questions regarding the receipt of public benefits on the current version of Forms I-485, I-129 and I-539.
The removal of this burden could mean more applications for green cards as a greater number of people become eligible. For immigration lawyers, it means fewer forms for AOS applications.
Lawful Prospective Immigrants (LPI)
Under the Citizenship Act, those who came to the US on or before January 1, 2021, have no criminal record, pass background checks and pay the taxes, are now eligible for LPI status. This is valid for six years, in which the beneficiary can apply for permanent residency status after five years, and further eligible for citizenship after three years of continuous compliance with all the requirements.
Non-immigrant visa holders and travelers are not eligible to apply for this status.
Green cards and H-1B visas
There’s been a slew of changes, as well as some noticeable absences around H-1B visa petitions.
As Exigent predicted, Biden is pushing through a bill to reduce the waiting period, increase the per-country limits and postpone the prevailing wage rule for those looking to obtaining an employment-based green card. Although yet to be passed, the bill could remove the 7% share per-country limit for H-1B visas, which was forcing many workers from across the world to wait for years to obtain a green card.
Biden also postponed the implementation of the H-1B wage rule until 2023. The rule gives preference to highly waged professionals and increases the minimum prevailing wage for foreign workers. The scope of the ‘v Visa’ (a lesser-known visa issued to the spouse and minor children of permanent residents) has also been expanded.
Although the Biden administration issued a proclamation revoking the Trump ban that blocked individuals from entering the US on immigrant visas, he did not lift the freeze on H-1B, J-1, and L-1 visas, which remains in effect and is set to expire on March 31.
On a brighter note, Biden revoked the immigration visa suspension at US Consulates and Embassies put in place by Trump due to COVID-19. Proclamation 10149 lifted the ban and the monthly Visa Bulletin for April 2021 shows EB-1 petitions from India and China as “current” to process.
Reopen previous H-1B denials
This month, USCIS issued a notification that it may reopen the previous H-1B denial cases under three rescinded policy memos. This applies to the adverse decisions taken earlier on the Form I-129 petition based on these memos.
H-4 EADs to continue
In contrast to Trump’s attempts to rescind the H4-EADs rule that allows spouses of H-1B visa holders to work in the US if they meet certain conditions, Biden has pledged to keep this rule, bringing relief for almost 100,000 H-4 spouses.
What this means for immigration lawyers
As mentioned previously, the number of petitions facing Request for Further Evidence (RFE) increased dramatically since the 2016 election– Exigent estimates more than 75% of applications now require more information. This is tedious work, especially during a busy CAP season. To be successful, immigration lawyers need to streamline processes to ensure their focus is on value-add work.
Under the new administration, the strict policy on RFE will likely relax slightly, easing the workload for immigration lawyers. On the other hand, the number of applications for green cards is likely to sky-rocket compared to the past 12 months. According to Pew Research, The number of people who received a green card declined from 266,000 in the third quarter of fiscal 2019 to under 78,000 in the third quarter of 2020. Now is the time to prepare for growth, by exploring outsourcing partnerships to create leverage and improve outcomes.
Combined with a busy CAP season as H1-B visa changes come into effect, immigration lawyers could see themselves with more work than ever. The challenge, as always, is managing through peak workloads with a near real-time understanding of ongoing changes to the immigration rules. Successful immigration firms are the ones with support structures that are flexible, have streamlined processes in place, and access to policy changes and implications.
Exigent is the industry’s leading provider of support services to immigration law firms. We help firms gain competitive advantage by delivering cases faster and more cost effectively. To learn more about our services and how we can increase success rates and reduce costs by up to 30 percent, please contact us.