31 Mar Immigration for Employers – President Biden Issues Executive Orders and Proposes Legislation Impacting Business Immigration
As the first 100 days of his term in office progresses, President Biden has already issued several Executive Orders that directly affect employers who hire foreign workers. In addition, President Biden has proposed legislation that will alter the rules that apply to employers who employ or seek to employ foreign born workers. Masud Labor Law Group (“MLLG”) is keeping a close watch on these developments and is available to assist employers with their immigration needs, as already complex business immigration rules continue to undergo changes. For your reference, below is a summary of some of the already announced changes that affect employers who hire, or are considering hiring, foreign workers.
Delaying Proposed Rule to Change the H-1B Cap Wage Selection Rules. Each year, the United States Citizenship and Immigration Services (“USCIS”) makes available 85,000 H-1B visas. These H-1B visas can be used by employers to hire foreign workers in specialty occupations such as engineering or medicine. To obtain one of the H-1B visas subject to the 85,000-visa cap limit, an employer must submit a registration into the “visa lottery,” along with information about the foreign worker they intend to hire. Registrations are randomly selected by USCIS without consideration of the wage to be paid. If selected, the employer may file a petition with USCIS to obtain a visa for the foreign worker. The Trump Administration had introduced a proposed rule that would have changed the selection process to favor higher paid foreign workers. This change would have made it more difficult for employers who do not pay H-1B workers at the highest wage levels to hire foreign workers, potentially hurting small to medium sized business. President Biden, however, has delayed implementation of the rule for at least nine months while it is further reviewed.
Delaying Proposed Rule to Increase Prevailing Wages for H-1B Visa Holders. Under the H-1B visa program, employers must pay a foreign worker the higher of the prevailing wage for the worker’s position or the actual wage paid for the position. Prevailing wages are determined by the Department of Labor (“DOL”) under a four-level system using data from the Occupational Employment Statistics program. On January 12, 2021, the Trump Administration published a rule that would significantly increase prevailing wages over the course of the next three years, making it more difficult for employers, particularly small to medium sized employers, to hire foreign workers. President Biden, however, suspended implementation of the rule until at least May 14, 2021, and has requested public comments on whether the rule should be modified or rescinded. Therefore, for the time being, existing prevailing wages remain in effect.
Withdrawal of Proposed Rule to End Work Authorization for H-1B Dependent Spouses. Under the current rules, dependent spouses of H-1B visa holders are allowed in certain circumstances to apply for and receive authorization to work for U.S. employers. President Trump had proposed eliminating work authorization for dependent spouses of H-1B visa holders. This proposed rule, however, has been revoked by President Biden. Thus, dependent spouses will continue to be eligible for work authorization in certain cases. In addition, President Biden has signaled a willingness to expand access to work authorization for certain H-1B dependents.
Preserving the DACA Work Authorization Program. Under the Deferred Action for Childhood Arrivals program (“DACA”), undocumented immigrants who were brought to the United States as children were authorized to work in the United States starting in 2012. President Trump had attempted to end DACA and work authorization for these immigrants through issuing Executive Orders. The United States Supreme Court, however, upheld the DACA program on procedural grounds. Since taking office, President Biden has issued an Executive Order instructing the Department of Homeland Security to continue implementing DACA. As a result, approximately 800,000 immigrants covered by DACA will continue to be eligible for work authorization, provided that eligibility requirements are met and applications are timely filed. Employers who employ DACA beneficiaries will remain obligated under I-9 compliance rules to confirm or re-verify DACA work authorization, and to treat DACA beneficiaries the same as any other work authorized employee.
Proposed Legislation to Provide STEM Graduates with Faster Path to Permanent Residency. In an immigration bill recently submitted to Congress, President Biden has proposed making it easier for foreign graduates who graduate with an advanced degree from a U.S. university in science or technology, to become permanent residents. If passed into law, this proposal will make it easier for employers to hire and retain foreign workers with STEM degrees. The foregoing provides some examples of the changes and proposed changes to business-immigration already announced by President Biden. As the landscape for business-immigration continues to evolve throughout President Biden’s term, MLLG is available to assist clients with their business-immigration needs, facilitating the hiring and retention of foreign-born workers, and ensuring that employers who hire foreign workers are in compliance with the rapidly changing rules.