U.S. Immigration Today and Tomorrow

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US Immigration

Today and Tomorrow

By DAVID S. JONES

US Immigration has been subject to regular change over at least the last 25 years. The last four years, however, under the Trump Administration saw the most frequent and some of the most significant policy changes in recent history. It is against that backdrop that we must view the current state of immigration as well as the future to come.

Changes to US Immigration Under Trump

In his first days in office, President Trump used executive actions to implement the so called Muslim travel bans, change policies at the US-Mexico border, and reduce the number of refugees admitted to the US. He issued the Buy American Hire American (BAHA) executive order, which bogged down the immigration system overall. BAHA changed a number of policies, such as deference to prior adjudications, that had been developed to streamline immigration processing, resulting in extensive delays, significant increases in requests for evidence and significant increases in denials.

The Trump administration also changed enforcement priorities, leading to increased ICE enforcement and deportations, and sought to end the Deferred Action for Childhood Arrivals (“DACA or Dreamers”) program, Temporary Protected Status (TPS) for certain countries, and employment authorization for spouses of certain H-1B visa holders. Additionally, the Trump administration sought to change how the required wages were calculated for H-1B and permanent residence purposes and to give preference in the H-1B lottery for companies that can pay higher wages. Lastly, the Trump Administration introduced an electronic system for the H-1B lottery and modified the selection order to give greater preference to individuals with US master’s degrees.

In response to COVID, the Trump Administration introduced a number of travel bans. Some of these were country / region- based to help prevent the spread of COVID. Others sought to prevent new workers from coming to the US. The issuance of new H-1B, L1 and certain immigrant visas was suspended. These bans crippled many US businesses as they were not able to fill critical positions or move key personnel internationally.

Many of the Trump administration policies were blocked by courts, and reasonable people can debate the pros and cons of others. For example, the electronic system for the H-1B lottery makes it both cheaper and easier for all companies to participate. This means that small businesses who could not afford file for H1Bs in the past now can. At the same time, however, this policy gives larger companies the ability to get a larger share of lottery selections. Does this help or hurt small businesses? On the other hand, the policy to give lottery preference to companies that pay higher wages clearly would disadvantage small businesses.

Changes to US Immigration So Far Under Biden

In his first days in office, President Biden sought to undo much of what had been done by the Trump Administration. He immediately changed policies with respect to the US-Mexico border, refugees, TPS, DACA and deportations. While he left the COVID-related travel bans in place and has actually expanded them, President Biden revoked non-COVID related travel bans and BAHA. He also withdrew or delayed several proposed regulatory changes, including the USCIS public charge rule and wage calculation rules.

President Biden issued an executive order on “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans.” With the revocation of BAHA and this new order, USCIS has returned to giving deference to prior adjudications and is slowly starting to resolve the backlog of cases. This in turn has resulted in fewer requests for evidence and fewer denials.

Proposed Legislation

Immediately upon his inauguration, President Biden sent the U.S. Citizenship Act of 2021 to Congress. This bill would provide pathways to citizenship and strengthen labor protections, reform the legal immigration system (including addressing permanent residence backlogs and inefficiencies), reform the employment verification process, provide additional rights to immigrants at the workplace, and prioritize smart border controls.

Specifically, the bill would provide Lawful Prospective Immigrant status to all undocumented individuals who arrived in the U.S. before January 1, 2021. After five years in this temporary status, immigrants would have access to a green card and lawful permanent residence if they meet certain requirements. After another three years as lawful permanent residents, they would be able to apply for citizenship. This path also would be available to certain individuals who were deported on or after January 20, 2017 and who meet certain other conditions.

The bill would eliminate employment-based per-country caps for employment-based visas in order to equalize wait times for applicants. Under the current system, Indian and Chinese nationals have significantly longer wait times for permanent residence. The bill also would raise family-based, diversity-based, and employment-based visa caps and eliminate the 3- and 10-year bars that currently prevent many undocumented individuals from ever qualifying for a lawful status. The bill has yet to receive a vote in the House of Representatives and is unlikely to pass in the Senate even if it makes it out of the House.

Two other bills, however, have passed in the House of Representatives: The American Dream and Promise Act and the Farm Workforce Modernization Act. The American Dream and Promise Act would create a path for citizenship for individuals covered by DACA. It passed 228-197. The Farm Workforce Modernization Act would provide a

path to legal status for undocumented farm workers. It passed 247-174. Neither bill is as extensive as the U.S. Citizenship Act of 2021, which likely gives them a greater chance of success, but are still likely to fail in the Senate. As a result, we are most likely to see any new immigration changes implemented through regulatory and policy changes.

COVID-19 and Global Immigration

With COVID-19 Travel Restrictions and COVID-related consular closures, global immigration will continue to be a problem. It is difficult to get visa appointments, and travel bans generally prevent travel directly from certain countries to the US. With specific exceptions, foreign nationals who have been in any of the following countries during the past 14 days may not enter the United States: China, Iran, European Schengen area United Kingdom (England, Scotland, Wales, Northern Ireland), Republic of Ireland, Brazil or India. US Citizens, immediate relatives of US citizens and Lawful Permanent Residents are exempt. Everyone else must spend two weeks in a third country or obtain a National Interest Exception (NIE).

The NIE requires an applicant to prove, with supporting evidence, that their entry into the United States is a matter of national interest, which should exempt them from the COVID travel bans. The NIE has undergone a number of shifts since the travel restrictions were implemented. Presently, it covers certain travel related to critical US infrastructure, such as healthcare or national defense, and travel to the US to provide a significant economic benefit to the economy. Students continuing a course of study and individuals traveling to the US for humanitarian reasons also are eligible for NIEs. Initially, all NIEs were issued for single entries and for short durations. On July 6, 2021, however, the Department of State (DOS) posted guidance that NIEs issued in the last 12 months are being automatically extended for 12 months from the date of approval, and for multiple entries, as long as they are used for the purpose under which they were granted. NIEs issued by Customs and Border Protection (CPB) are not covered by this new guidance.

Conclusion

US immigration is an ever-evolving area of the law, and the last four years in particular have been tumultuous. While major changes are slow to take place, simple policy changes can have a dramatic impact on business operations. Employers should ensure that they stay current on any immigration changes to avoid unwelcome surprises and take advantage of new benefits.

David Jones is an immigration attorney with Fisher Phillips, a national labor and employment law firm that represents employers. He can be reached at djones@fisherphillips.com.

David S. Jones

Regional Managing Partner and Immigration Partner Memphis Fisher Phillips djones@fisherphillips.com www.fisherphillips.com

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