The US is on the brink of a Presidential transition, leaving employers to consider how business immigration will be affected by a new Presidential administration. While the Biden administration has offered insight into its plan for the US as a nation of immigrants, how much of a priority business immigration will be to the new administration is not yet clear. We expect shifts in immigration policies implemented by the outgoing administration. Yet, the impact and timing is uncertain. Employers must be ready to acclimate to changes and to answer questions from the business, human resources and the foreign national population regarding potential effects of those changes on individual employees and the company as a whole. In this alert, we will look at changes that could take place under a new Presidential administration and, theoretically, how quickly those changes could occur.
How could a new Presidential administration impact my company’s practices?
It is important for companies to stay abreast of potential policies and legislative changes that will directly impact its foreign-national population and its own business practices even if the picture of business immigration under a Biden administration is not yet clear. The general consensus appears to be that a Biden administration will ease restrictive policies and make business immigration easier for US companies; this may not always be the case. While it is important to avoid guessing or rely on rumors, it is equally important to take stock of what could happen--and when--under a new administration. This alert will therefore look at the power a new administration would have to undo or replace policies and regulations enacted during the Trump administration, and also look to what new regulations and laws could be enacted under a Biden administration.
Federal Regulations and Policy Memorandums
Agencies under the Trump administration have enacted several restrictive immigration regulations in a variety of formats, including: (i) interim-final rules without notice and comment and interim-final rules inviting comment; (ii) informal rule-making with notice and comment; and (iii) policy memorandums. Under general administrative law principles, the method of enacting an administration regulation must be followed to remove or replace it (note: while exceptions to this rule exist, we will follow this adage for purposes of this alert). This mainly impacts the speed in which change can occur.
Of all federal regulations enacted during the Trump administration, interim-final rules could be theoretically be removed or replaced immediately. Generally speaking, an interim-final rule is issued without the public notice and comment period required by informal rule making. The two most notable immigration interim final rules during the Trump administration were:
- DOL increase of prevailing wages that impact H-1B, E-3, H-1B1, and Prevailing Wage Applications
- DHS interim-final rule (which invites comment) aimed at “Strengthening the H-1B Nonimmigrant Visa”
However, notably, a Federal District Court in Northern California ruled on 1 December 2020, that both rules are enjoined as a result of the Administration’s attempt to categorize them as interim final rules. In other words, these regulations are no longer effective. The Administration could, in theory, seek to reinstate the rules either by (i) appealing the decision, or (ii) reissuing the rule with a notice and comment period. However, given that there is approximately six weeks until the Biden administration will take office, it is unlikely that either option could be completed in this short timeframe. Even if either process begins, but does not end, it would provide a Biden administration with the ability to end the regulations by failure to defend them in court.
Regulations created by informal rule making
Regulations created by informal rule making require a public notice and comment period. This not only slows the process of enactment, but requires that the enacting government agency review comments from the public regarding its proposed rule, and meaningfully respond to such comments in publishing the final rule. Regulations enacted in this manner, in most circumstances, would require an analogous notice and comment period to remove or replace. This means it could take months for these rules to be replaced, absent litigation (see below). Notable regulations created by informal rule making include:
- DHS proposed change to H-1B Lottery System that would eliminate the randomized lottery and prioritize higher-paid employees and disfavor entry level employees
- DHS expansion of Public Charge inadmissibility rule
- DHS fee increase and expansion of Premium Processing
- DHS overhaul of student visa program
Policy memorandums and internal policies
Policy memorandums are typically subject to quick undoing by way of rescission or replacement (though this is not always the case as seen by the DACA Supreme Court decision). The Trump Administration's policy memorandum titled Buy American, Hire American is the administration's cornerstone policy memorandum that, over the past four years, has given way to public and internal policy directives. A new presidential administration could likely remove and rescind this and related policies immediately. Another notable policy enacted early in the Trump administration was the USCIS' rescission of a memorandum that required officers to grant deference to prior approvals for extension requests. The Biden Administration could reinstate this policy memorandum or implement a similar one, therefore creating an internal consistency in USCIS' adjudication process.
Any of the above subject to federal litigation
While it remains to be seen how proactive a new administration will be with regards to removal, replacement, or creation of new regulations or policies, one additional outcome could relate to federal litigation. Specifically, a number of the above rules and policies are being challenged in federal court. Should these lawsuits extend beyond 20 January, a new administration could decide to reallocate resources rather than fight the suits challenging the legality of these rules and policies. This could have the effect of removing the implementation of these rules without the requirement to take proactive action.
Presidential Proclamations and Executive Orders
Presidential proclamations are unilaterally enacted and, following our general rule, could likely be removed or replaced very quickly under a new administration. The Trump administration has enacted several important proclamations relating to COVID-19 that could be subject to immediate removal or replacement. This includes:
- Travel restrictions, including Brazil, China, Iran, Ireland, Schengen Region countries, and the United Kingdom (in addition to separate restrictions from Canada/Mexico)
- Suspension of issuance of Immigrant and Nonimmigrant Visas
- Travel ban relating to predominantly Muslim countries
New Rule Making and Legislative Action
It is not yet clear how and whether a Biden administration will seek to proactively create new rules or propose new legislation impacting business immigration. The Biden campaign has hinted at potential change for business immigration, which could include:
- Reforming the visa system to expand the number of high-skilled visas
- Eliminating the limits on employment-based visas by country
- Increasing the number of visas offered for permanent, work-based immigration based on macroeconomic conditions
- Comprehensive immigration reform including but not limited to providing a pathway to status for undocumented immigrants who were brought to the US as children, known as Dreamers
- Potential expansion of Temporary Protected Status (TPS)
- Temporary/seasonal worker reform
What actions should my company take?
Immigration will continue to be a front burner issue for employers in the new year. Potential changes under a new administration may eventually yield greater benefits to companies seeking to secure and retain foreign national talent. In the short term, however, navigating the ongoing COVID related travel restrictions and existing policies will remain a challenge. Now, more than ever, employers are well advised to keep potential changes on their sightlines and stay close to key stakeholders on these issues.