It’s no secret that the Trump administration has done everything in its power to limit immigration, both temporary and permanent. In many cases, the courts have curtailed the most drastic aspects of the administration’s efforts. What does President-elect Biden say he will do, and what should his administration do, as the country moves into 2021 and beyond?

Among other developments, the Trump administration’s denial rates for H-1B high-skilled visa holders are way up. For example, according to Axios, as of the second quarter of fiscal year (FY) 2020, H-1B denial rates for several companies were:

Company FY 2015 H-1B Denial Rate FY 2020 (through Q2) H-1B Denial Rate
Uber 2% 25%
IBM 3% 19%
Amazon 1% 15%
Google 1% 15%
Microsoft 1% 12%
Intel 1% 9%

The Trump administration has made several recent moves to discourage business-related immigration. For example, a recent interim final rule from the Department of Labor (DOL) increased prevailing wages for nonimmigrant H-1B, H-1B1, and E-3 foreign workers and immigrant EB-2, EB-3, and foreign workers by changing wage computations. The Department of Homeland Security (DHS) also issued an interim final rule revising the definition of an H-1B “specialty occupation” and adding definitions for “worksite” and “third-party worksite,” among other changes. DHS said the rule will impose new annual costs of almost $25 million for petitioners.

The Biden-Harris Plan

The Biden-Harris immigration platform is multi-pronged and ambitious. Two of Biden’s top five stated priorities for his first days in office are immigration-related, including rescinding “Muslim bans” and reinstating the Deferred Action for Childhood Arrivals (DACA) program for “Dreamers,” a group of people who are undocumented but have been in the United States since they were children and meet certain eligibility requirements. The latter issue received help in recent days from a federal court, which ruled that a new Trump administration policy limiting DACA was not valid because Chad Wolf’s appointment as Acting Secretary of Homeland Security was invalid.

Some of Biden’s immigration proposals would require legislative action in Congress, but others could be advanced immediately, such as through executive orders. Below are highlights of selected aspects of Biden’s immigration-related proposals that would affect business, followed by recommendations for key focus points.

Among other things, the Biden administration proposes to:

  • Establish a wage-based allocation process and enforcement mechanisms to ensure that temporary visas are aligned with the labor market
  • Expand the number of high-skilled visas
  • Eliminate per-country limits on employment-based visas
  • End workplace raids
  • Increase the number of visas for permanent workers that are responsive to macroeconomic conditions
  • Exempt from any cap recent graduates of PhD programs in science, technology, engineering, and mathematics (STEM) fields
  • Give such graduates a green card with their degree
  • Work with Congress to provide a path to legalization for long-term agricultural workers and temporary protected status recipients
  • Allow seasonal and short-term workers to switch jobs
  • Require employers to supply data showing a lack of labor availability when temporary workers are hired
  • Require employers to pay a “fair calculation” of the prevailing wage

Recommendations for Business Immigration Reform

To reform business immigration in 2021 and beyond, the Biden administration should focus first on undoing some of the damage done to immigrants under the Trump administration. A few ideas could include:

  • Withdrawing the interim final rules from DOL and DHS that primarily affect H-1B workers.
  • Repealing all executive orders that generally bar most nonimmigrants and immigrants from entering the United States.
  • Withdrawing a proposed DHS rule that would end duration of status for international students, which NAFSA says would “constitute the largest changes to regulation of international students and scholars in 20 years,” if finalized without change.
  • Reaffirming Biden’s commitment to DACA.
  • Working with Congress to adopt a merit- or skills-based approach to labor immigration and a points-based program for selecting foreign workers that includes criteria designed to balance the short- and long-term needs of the U.S. economy. To overcome legislative gridlock, this could include an incremental approach in the form of a pilot program as a standalone bill rather than as part of a comprehensive immigration reform package, as proposed by Stephen Yale-Loehr and Mackenzie Eason.

For advice in specific situations, contact your Miller Mayer attorney.