Biden's Immigration Changes: What You Need to Know

Welcome to another installment of “Dear Sophie,” the advice column dedicated to answering your immigration questions, particularly those related to the technology sector.

“Your inquiries are crucial for disseminating knowledge, empowering individuals globally to overcome geographical limitations and realize their aspirations,” states Sophie Alcorn, a Silicon Valley immigration lawyer. “Whether you work in people operations, lead a company, or are seeking employment in Silicon Valley, I welcome your questions for my next column.”

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Dear Sophie:

I am an HR professional at a technology company. I am aware that President Biden is unveiling a new immigration plan today.

What is your assessment of how the new administration will impact immigration for businesses, corporations, and startup founders in the United States?

—Free in Fremont

Dear Free:

Today marks a significant moment. The rate of change is increasing, particularly within Washington D.C. As of this writing, President Biden is anticipated to soon introduce new legislative proposals for comprehensive immigration reform. As the world observes, we are collectively concentrating our efforts on enhancing our political, social, and technological frameworks to provide every individual with the opportunity to thrive.

One aspect of my practice that I greatly value is witnessing the personal growth of international professionals navigating the U.S. immigration system; it is a privilege to support individuals on their journey from reacting to circumstances to becoming proactive agents of change.

The immediate focus of the proposed legislation centers on providing a solution for Dreamers (individuals currently in the U.S. without authorization), as well as bolstering the rights of refugees, asylum-seekers, and children. For further insights from me on this subject, please refer to my recent podcast discussing many of these evolving changes. The proposed bill is projected to encompass hundreds of pages, so please continue to follow this Dear Sophie column for ongoing updates as I analyze and explore the specifics, particularly as they relate to technology immigration.

Innovation will be fostered by numerous new immigration avenues gaining prominence. Biden’s campaign platform emphasized that “Immigrants are essential to the strength of our country and the U.S. economy.” The Biden administration has designated immigration as a key priority within its COVID-19 response, with an initial objective of revising the majority of regulations established during the Trump administration. To provide context, President Trump issued over 400 immigration-related executive orders and proclamations during his presidency.

H-1Bs: While H-1B visas have received considerable attention regarding new wage rules, changes to the lottery order, and related litigation, the lottery process is still scheduled for this spring. If your organization intends to sponsor candidates, now is the time to take action, irrespective of developments in Washington. If your company is planning to sponsor individuals for an H-1B visa – whether they are currently residing in the U.S. or abroad – I recommend continuing to prepare for the upcoming H-1B registration period.

Muslim Ban: Another immediate priority is the rescission of the “Muslim Ban.” Biden and his team have explicitly stated that Trump’s executive order prohibiting visa holders from predominantly Muslim-majority countries from entering the United States will be swiftly terminated.

Improved Processing Times: The coronavirus pandemic initially led to the closure of all U.S. embassies and consulates for routine visa and green card processing, and many remain closed due to the resurgence of the virus. The resolution of processing delays for visas and green cards is largely contingent upon the timeline of the COVID-19 pandemic and the allocation of resources for immigration and visa personnel. The Biden administration may choose to expedite the process by eliminating the Trump-era practice of subjecting most visa renewals to the same rigorous scrutiny as initial petitions, even if the visa holder’s circumstances have not changed.

H, L and J Visa Ban: Immigration remains viable due to ongoing legal challenges to these bans and other restrictive immigration policies in federal courts. Last fall, a federal court judge temporarily halted the ban on H-1B, H-2B, J and L visas for organizations represented in the case, including the National Association of Manufacturers, U.S. Chamber of Commerce, National Retail Federation, TechNet and Intrax Inc. This means that employer sponsors who are members of any of these organizations are exempt from the H-1B ban. Further details about this federal court ruling can be found in the Dear Sophie column from last October.

Although President Joe Biden has voiced criticism of these bans, he has not indicated whether he would immediately abolish them. Given that President Trump implemented the bans on issuing H-1B, J and L visas and green cards abroad through executive proclamations, President Biden can readily and efficiently revoke them through his own executive proclamation.

USCIS Processing Changes: During the initial months of the pandemic, from March through June of last year, U.S. Citizenship and Immigration Services (USCIS) continued processing immigration applications despite office closures for in-person appointments and interviews. USCIS acknowledged earlier this year that its immigration processing is experiencing substantial delays due to COVID-19 restrictions, increased filings, and other factors. These delays are impacting receipt notices for applications and petitions, such as green cards and employment authorization documents (work permits), as well as the scheduling or rescheduling of appointments for biometric data collection from applicants seeking green cards through adjustment of status, U.S. citizenship, and other benefits.

In response to the ongoing COVID-19 pandemic, USCIS recently extended its policy of granting applicants and petitioners an additional 60 calendar days to respond to a Request for Evidence, Notice of Intent to Deny, Notice of Intent to Revoke, Rescind or Terminate dated between March 1, 2020, and Jan. 31, 2021.

This extension may be further prolonged depending on the duration of emergency measures to combat the coronavirus. We are hopeful that improving USCIS processing times will be a straightforward priority for the incoming administration.

Continue to check my Dear Sophie column here with ExtraCrunch and TechCrunch → I will continue to provide updates during this period of rapid development.

With best regards,

Sophie

Do you have a question? Submit it here. We reserve the right to edit your submission for clarity and/or brevity. The information provided in “Dear Sophie” is for general informational purposes only and does not constitute legal advice. For more information on the limitations of “Dear Sophie,” please review our complete disclaimer here. You can reach Sophie directly at Alcorn Immigration Law.

Sophie’s podcast, Immigration Law for Tech Startups, is available on all major podcast platforms. She is currently accepting applications for potential guests!