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12.17.20

What employment-based immigration rules and policies will we encounter in the waning days of the Trump administration?

BY Jason Gerrol

President Trump has undertaken more than 400 immigration executive actions, and myriad new immigration rules, many of which have had significant impacts on our country's employment-based immigration system. President-elect Biden has indicated his intentions to reverse many Trump administration immigration rules and policies in his "Biden plan for securing our values as a nation of immigrants," but what are the key Trump administration policies and rules the Biden administration will encounter on inauguration day, and how quickly can those policies and rules be changed?

Presidential Proclamations or Executive Orders, in general, can be quickly reversed by further executive action. In contrast, regulatory actions can be rescinded only via a new rulemaking procedure under the Administrative Procedure Act (APA), court order, or act of Congress, making the future of those rules and their impact on U.S. employers more uncertain. Here, we analyze some of the recent Trump administration rules and policies impacting employment-based immigration.

Rules impacting the H-1B visa and permanent residency programs:

1. On October 8, 2020, both the Department of Labor (DOL) and Department of Homeland Security (DHS) published new regulations that resulted in significantly higher prevailing wages required for H-1B, H-1B1, and E-3 nonimmigrant visa sponsorship, as well as permanent residency (green card) sponsorship requiring a PERM Labor Certification and narrowed the definition of "specialty occupation," among other changes, making H-1B sponsorship more difficult. The increased prevailing wages took effect immediately on October 8, 2020, while the other changes were scheduled to become effective December 7, 2020.

On December 1, 2020, both rules were struck down by a California federal judge, finding the Trump administration failed to justify skipping required rulemaking procedures under the APA. Therefore, as of the date of this post, the DHS will not implement the proposed changes to the H-1B program and DOL has reverted back to the previous prevailing wage schedules that otherwise would have been in effect through June 2021.

2. On November 2, 2020, the Trump administration proposed a rule that will replace the current H-1B random selection process, or "lottery," by which U.S. Citizenship and Immigration Services (USCIS) selects H-1B registrations, with a system that prioritizes H-1B registrations filed by employers paying the highest prevailing wages. The practical effect of the rule would be to make the H-1B program unaffordable for many U.S. employers seeking high-skilled workers, especially smaller employers and nonprofits that often cannot offer the most competitive wages.

Comments on the new rule were due December 2, 2020, and by most accounts, it will be difficult for USCIS to comply with APA rulemaking procedures and issue the final rule prior to inauguration day. It is unlikely the Biden administration will support this Trump administration rule and its particular approach, but importantly, President-elect Biden has announced that he does intend to implement changes to the H-1B visa program that focus on prevailing wages, while also increasing the availability of such visas.

The future of the Public Charge rule:

On August 14, 2019, DHS issued a final rule that significantly changes the standard by which DHS will determine whether an applicant is inadmissible as a potential public charge, and therefore, ineligible for a U.S. non-immigrant or immigrant visa. The public charge final rule introduces a much stricter public charge standard, and requires significant additional financial documentation from many foreign nationals seeking lawful permanent residency such as credit reports, documentation of assets and liabilities, and no clear guidelines for how such documentation will be evaluated.

The Public Charge rule has been met with several lawsuits, many of which are still pending, and a final order regarding the future of the Public Charge rule has yet to be issued as of the date of this post. President-elect Biden has expressly stated he intends to reverse the Public Charge rule, and its "discriminatory criteria," and introduce a system that is "open and welcoming to all, not just the wealthy." If the current Public Charge final rule withstands court challenges, the Biden administration will likely need to initiate a lengthy new APA rulemaking procedure, before the rule could be rescinded entirely or replaced.

The future of the USCIS Fee Rule:

Pursuant to a USCIS rulemaking, new USCIS filing fees and forms were to take effect October 2, 2020. While filing fees for certain types of immigration benefits were scheduled to decrease, the majority of fees were to increase, and some by significant amounts. In addition, the rule would have implemented policy changes, including removing certain fee exemptions, changing fee waiver requirements, and giving USCIS more time to process cases filed via the Premium Processing service, among other changes. However, on September 29, 2020, implementation of the USCIS rule was temporarily blocked in its entirety by a federal judge, meaning USCIS cannot require the new fees or forms at this time.

Similar to the Public Charge rule, should USCIS prevail in court challenges to the new fee rule, the Biden administration might need to initiate a new APA rulemaking process to rescind the rule, leaving these changes in place for potentially several months.

The future of Deferred Action for Childhood Arrivals (DACA):

On June 18, 2020, the U.S. Supreme Court issued a major victory for "Dreamers" and supporters of the DACA program, finding the Trump administration's decision to terminate DACA was arbitrary and capricious in violation of the APA. Furthermore, on December 4, 2020, a U.S. District Court for the Eastern District of New York ordered DHS to fully reinstate the DACA program, effectively reinstating the program as introduced by President Obama in 2012. It is unlikely at this point that the Trump administration will be victorious in its attempts to terminate DACA, and President-elect Biden has announced his intention to fully reinstate the DACA program if necessary, explore other options to protect "Dreamers" and their families, and "help Dreamers contribute even more to our economy."

The future of Temporary Protected Status (TPS):

TPS is a temporary immigration status granted to individuals who are already in the U.S. and who are unable to safely return to their home countries because of temporary conditions in those countries. DHS may designate a country for TPS for reasons such as an ongoing armed conflict, environmental disaster (such as an earthquake or hurricane), epidemic, or other "extraordinary and temporary conditions." Nationals of a designated country who apply for, and are granted, TPS are not removable from the U.S. and are granted work authorization for the duration of the TPS designation.

The Trump administration had previously announced the termination of the TPS designations for nationals of Sudan, Nicaragua, Haiti, El Salvador, Honduras, and Nepal, and those decisions were subsequently challenged in two separate lawsuits resulting in a nationwide injunction blocking the Trump administration from moving forward with these terminations. Recently, in compliance with court orders, USCIS announced the extension of TPS-related documentation through October 4, 2021, for TPS beneficiaries from Sudan, Nicaragua, Haiti, El Salvador, Honduras, and Nepal.

President-elect Biden has announced his intention to "order an immediate review [of TPS] for vulnerable populations," and calling the Trump administration's "politically-motivated decisions to rescind protected status for hundreds of thousands of people," a "recipe for disaster." In addition, President-elect Biden has announced his plans to "protect TPS and Deferred Enforced Departure (DED) holders from being returned to countries that are unsafe," and offer "a path to citizenship through legislative immigration reform." While meaningful legislative immigration reform is perhaps unlikely, it is clear the Biden administration will take a much more favorable position than the Trump administration toward the TPS program.

The DHS Duration of Status rule:

On September 25, 2020, DHS proposed to change the F-1 international student visa, J-1 exchange visitor visa, and I (foreign media) visa programs to no longer permit admission for "duration of status," but rather fixing the period of lawful admission to either a two- or four-year period depending on various factors. The proposed changes would have required F-1 international students and J-1 exchange visitors to file applications with USCIS to extend their status at the end of the two- or four-year admission period, and would have potentially introduced challenges to an F-1 student's ability to engage in Curricular Practical Training (CPT) or Optional Practical Training (OPT), both of which are programs that allow foreign students to obtain work experience with U.S. employers. By most counts, the practical effect of the DHS rule would be to further discourage international students from enrolling at U.S. colleges/universities, and participating in the U.S. workforce through either CPT or OPT.

Comments to the rule were due October 26, 2020, and it is possible the final rule will be issued prior to inauguration day. Importantly, the Trump administration's decision to shorten the comment period from the normal 60 days, to 30 days, may provide an argument for invalidating the rule on APA grounds should it go into effect. Nonetheless, if finalized, the Biden administration would likely have to engage in a lengthy rule-making process of their own to rescind the changes.

Rescission of H-4 EADs:

Pursuant to a rule enacted by President Obama, certain H-4 dependent spouses of H-1B nonimmigrants can file for an Employment Authorization Document (EAD), allowing for employment in the U.S., if the H-1B principal has met certain milestones in the lawful permanent residency sponsorship process, but is unable to obtain a green card due to green card numerical backlogs.

The H-4 EAD rule, as it is commonly known, has been under attack by the Trump administration for some time, but efforts to rescind the rule have been slow. As of the date of this post, the Trump administration's proposed rule to eliminate H-4 EADs remains under review by the Office of Information and Regulatory Affairs, and it is unlikely the rule will be finalized prior to inauguration day, leaving the H-4 EAD program in place.

Proclamations 10014 and 10052:

On June 22, 2020, President Trump issued Proclamation 10052, suspending the issuance of visas in the H-1B, H-2B, J, and L visa categories, with exceptions. Proclamation 10052 also extended Proclamation 10014, which bars certain foreign nationals seeking entry into the United States for the first time as immigrants (those entering the U.S. from abroad for the first time as U.S. permanent residents). Both proclamations are to remain in effect through December 31, 2020, and it is expected the Trump administration will extend the Proclamations beyond December 31, 2020.

The stated purpose of Proclamations 10052 and 10014 was to "protect unemployed Americans from the threat of competition for scarce jobs," but opponents of the Proclamations argue these are yet another attempt by the Trump administration to curtail lawful immigration, and actually hurt the U.S. economy. It is unlikely the Biden administration will support these Proclamations.

Importantly, Proclamations 10052 and 10014 are not to be confused with the various Trump administration Proclamations limiting travel to the U.S. during the COVID pandemic. Some form of international travel restrictions will likely remain in effect as necessitated by the global pandemic.

Conclusion

This alert addresses only some of the more recent Trump administration immigration actions affecting U.S. employers, and which will be at issue on inauguration day. The Biden administration will undoubtedly encounter a long list of immigration actions by the Trump administration, which President-elect Biden has characterized as an "unrelenting assault on our values and our history as a nation of immigrants."

While it is clear U.S. employers sponsoring foreign national workers will encounter a much different approach to employment-based immigration under the Biden administration, there will undoubtedly be Trump administration rules and policies that will remain in effect for some time to come. In addition, U.S. immigration policy remains contentious, and employers should not expect meaningful legislative reforms to employment-based immigration. It is therefore important for U.S. employers to continue to seek the guidance of immigration counsel as we navigate this important period of time in U.S. immigration.

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Author

Jason Gerrol

Of Counsel

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