Welcome to another installment of “Dear Sophie,” your source for expert guidance on immigration matters relevant to the technology sector.

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

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Dear Sophie:

Our people operations team is proactively planning for immigration matters in the coming year and beyond.

What developments can we anticipate regarding U.S. visas and green cards?

—Ready in Redwood City

Dear Ready:

That’s a great question! While I don’t possess a predictive tool (as of yet), there’s considerable potential, stability, and clarity we can foresee in the realm of immigration.

U.S. immigration policy is poised for significant evolution in the months ahead, influenced by the completion of the Trump administration’s regulatory initiatives, the resolution of ongoing legal challenges, and the inauguration of President-elect Biden on January 20. The changes I am monitoring will encourage U.S. businesses to recruit and retain leading international talent, and will streamline the processes for doing so. Opportunities will also expand for families and entrepreneurs, bolstering the U.S. and Silicon Valley’s tech startup ecosystems.

The initial 100 days of President-elect Biden’s administration are expected to prioritize the reversal of numerous immigration policies enacted during the Trump era. Some of these reversals will be implemented through executive orders (though likely not via social media!), while others will necessitate adherence to established legal procedures outlined in the Administrative Procedure Act (APA). The APA governs the process by which federal agencies formulate and publish regulations.

Following established procedures to revoke or modify existing rules – even on an accelerated timeline – requires sufficient time for thorough review and public feedback. We anticipate that due process will be followed to implement these changes effectively.

I anticipate the removal of travel restrictions at some point in 2021, contingent upon evolving political landscapes and advancements in COVID-19 mitigation through vaccination efforts. Furthermore, I foresee U.S. Embassies and Consulates resuming full operations for visa and green card interviews in the near future.

In the immediate term, a cautious approach to immigration and international travel remains advisable. We continue to advise employers to facilitate the continued presence of individuals in the U.S. by extending current visas or transitioning to alternative visa statuses through a “change of status” process, rather than requiring employees to undergo “consular processing” abroad.

Recent rule proposals from the Trump administration have largely focused on H-1B visas and the associated application procedures. To gain a deeper understanding of these recent and proposed modifications, please refer to previous “Dear Sophie” columns addressing the higher wage classifications and new H-1B requirements established by the U.S. Department of Labor and the Department of Homeland Security, respectively, as well as the elimination of the random H-1B lottery.

Despite these proposals, we recommend that all parties continue to prepare for the H-1B lottery as usual. We expect the registration window for H-1B applicants to be open from March 1 to March 20 again next year, with the U.S. Citizenship and Immigration Services (USCIS) informing employers of selected candidates by March 31, consistent with last year’s timeline. Employers will then have until June 30 to submit an H-1B petition on behalf of the chosen candidate. Explore my podcasts for guidance on crafting a compelling H-1B petition and navigating the H-1B season in 2021.

Regarding financial planning, we anticipate USCIS will implement increased fees in the coming year. Historically, USCIS was funded through filing fees, allowing it to remain operational during federal government shutdowns. This changed in 2020 when Congress provided financial assistance to USCIS to avert furloughs. Earlier this year, USCIS finalized a revised fee structure scheduled to take effect on October 2, but a federal court halted these increases. Litigation on this matter is ongoing. Separately, the premium processing fee rose from $1,440 to $2,500 in October.

Pay attention to the runoff election on January 5 in Georgia for the state’s two U.S. Senate seats. The outcome will determine which party controls the Senate and will indicate whether President-elect Biden will have the opportunity to enact the remainder of his immigration agenda through Congressional legislation or if he will need to rely on executive orders and proclamations, such as fully reinstating the Deferred Action for Childhood Arrivals (DACA) program and establishing a pathway to citizenship for Dreamers, creating a startup visa, and eliminating the per-country cap on green cards, among other initiatives. A Democratic Senate majority could facilitate further immigration reforms, such as aligning the number of employment-based green cards with U.S. labor market demands.

There are many promising developments and opportunities on the horizon.

Wishing you happy holidays!

Sophie

We are pleased to announce the launch of our first online immigration course, Extraordinary Ability Bootcamp. Many of our clients have achieved success through options such as the O-1A nonimmigrant visa, as well as the EB-1A extraordinary ability green card and the EB-2 NIW green card.

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 further details regarding 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!