Episode 90: Remains of the day | Biden’s final quarter immigration priorities

This episode of the BAL Immigration Report is brought to you by BAL, the corporate immigration law firm that powers human achievement through immigration expertise, people-centered client services and innovative technology. Learn more at BAL.com.

In this week’s episode, BAL’s Eileen Lohmann and Steve Plastrik discuss the Biden administration’s immigration priorities for the remainder of the year. Plus, the latest immigration news.

From Dallas, Texas, I’m Rebecca Sanabria.

The Biden administration has surpassed its predecessors in performing executive actions related to immigration, with 535 done in its first three years alone.

One of the administration’s most recent policies could enable approximately 500,000 spouses of U.S. citizens to apply for permanent residency without leaving the country.

As President Biden’s term draws to a close, BAL senior associates Eileen Lohmann and Steve Plastrik joined the BAL Immigration Report to discuss the administration’s remaining immigration priorities.

Plastrik: Eileen, it’s always such a pleasure getting to talk with you. I really enjoy picking your brain on these topics.

It’s hard to believe that there’s just a couple months until the election, and then after that, the inauguration and a new administration will be coming in super quick. There’s a lot going on right now and a lot of different things to talk about before the end of this administration.

Lohmann: Yes.

Plastrik: Let’s get into it.

Lohmann: With the election less than two months away, a lot of people have been thinking about immigration changes that could be coming up in 2025 based on both potential outcomes of the election. But how important have the last couple of months been and how important will the remainder of Biden’s term be? So we’re going to talk today about what Biden’s top regulatory priorities have been this year and what they will be between now and Jan. 20. So on the employment-based immigration front, Steve, what are your thoughts on that?

Plastrik: There’s really been a number of regulatory developments worth focusing on. Earlier this year, the Biden administration finalized changes to how it runs the H-1B visa cap registration and lottery process.

This is the process that takes place in March every year and determines who’s eligible to apply for the limited number of H-1B visas that are available each year. Specifically, the Biden administration turned the registration and selection process into one that’s beneficiary-centric. This means that each employee is entered into the lottery and has the same likelihood of being selected regardless of the number of potential employers who have sponsored them for that lottery.

The changes were meant to level the playing field and discourage potential bad actors from trying to game the system to increase their chances of being selected in the lottery. Based on data that USCIS has released, the change to the beneficiary-centric registration and selection process was overall pretty successful. This year, individuals who were entered into the lottery had an almost 29% chance of being selected, which was a 3% increase over last year.

Three percent isn’t a huge increase in the selection rate, but it does reverse the trend of decreasing selection rates that we’ve seen for the last three years before that. Overall, the fact is, regardless of the registration and the selection process, the demand for H-1B cap visas is just way higher than the limited number available each year.

Lohmann: Steve, we know that President Biden signed an executive order last October on artificial intelligence. What have the agencies been doing as part of the implementation of that order this year?

Plastrik: Another regulatory priority for the Biden administration has been related to the 2023 executive order that focused in part on improving and modernizing immigration pathways for experts in artificial intelligence and other emerging and critical technologies.

This included a few different things, and parts of this push include the government’s creating additional online resources explaining different immigration options for STEM professionals, some additional guidance on how certain individuals might qualify for a green card category based on their work being in the national interest of the United States, and a few other things.

Eileen, this summer, we’ve also seen the Biden administration focus on providing relief to families. What should people know about the Keeping Families Together program?

Lohmann: It was a really huge development, actually. This summer, the Biden administration announced a program that allows spouses and certain stepchildren of U.S. citizens to apply for parole and ultimately a green card from within the U.S. Rolling out that program has been and continues to be a major priority for the administration.

President Biden announced this program back in June. It allows certain spouses and stepchildren of U.S. citizens to apply for parole in place. If approved, they have three years of parole in the U.S., and they’re eligible to apply for work authorization. And most importantly, they have the ability to apply for a green card from within the United States. Currently, even though a spouse of a U.S. citizen is eligible for a green card as an immediate relative, if they enter the country unlawfully, they have to leave and re-enter the U.S., and they risk being subject to a 10-year bar that would separate them potentially from their family for 10 years.

So, to qualify, the aim of this program is to solve that issue, because they are eligible — it’s the fact that they have to leave and come back to apply. To qualify for Keeping Families Together, a spouse must be able to demonstrate that, as of June 17, they were legally married to a U.S. citizen, and that they had continuous presence in the United States for at least 10 years.

This program is really for very long-term residents of the United States. The government has estimated that 500,000 spouses and 50,000 stepchildren could qualify for the program. On Aug. 19, U.S. Citizenship and Immigration Services posted a Federal Register notice, along with detailed guidance and FAQs for applicants, and began accepting applications on that day.

The agency even started issuing approvals that week. Our understanding is that the applicants who received approvals already had biometrics on file that USCIS could reuse, which is why they were able to process those so quickly. Now, the program is currently on pause due to a court order.

Just after the program opened, and just after those first initial approvals had started to go out, a group of states led by Texas filed a lawsuit challenging the program on Aug. 23. And on the 26th, the court sided with the states and issued an order temporarily prohibiting DHS from granting any parole requests under the program.

Sanabria: Lohmann noted that the court later extended that order through Sept. 23 and scheduled a hearing for the 18th.

Lohmann: The future of the program really will depend on how this litigation proceeds — and then, ultimately, the outcome of the presidential election.

So, Steve, moving back into the employment-based space, the Department of Labor recently published a request for information that could affect the green card process. What do employers need to know about these potential updates that are in the works?

Plastrik: You’re right. This is part of the Biden administration’s 2023 Executive Order on Artificial Intelligence, and that instructed the U.S. Department of Labor to solicit public feedback on if and how it could expand a list of occupations that’s known as Schedule A. Schedule A is a list of occupations where the government has predetermined there’s not a sufficient number of qualified workers in the U.S. In other words, these are shortage occupations.

For occupations that qualify under Schedule A, since the government has already determined that there’s a shortage of workers, employers don’t need to go through the typical PERM labor market testing process that most employers pursuing a green card have to go through. This can mean a shorter, more streamlined process to becoming eligible to apply for a green card.

Schedule A isn’t new. It’s been around for decades, but it also hasn’t been updated in decades. It currently includes just a limited number of occupations, and it really hasn’t been utilized by employers in a significant way.

So, that all sounds really great, right? Well, employers need to keep in mind that the U.S. Department of Labor has only asked for public comments. It hasn’t agreed to make any changes to its process or to add any occupations to Schedule A. We’re still waiting to see what the government will do with this information, if anything, and the upcoming election and potentially new government policies and priorities also makes updates to Schedule A uncertain.

Eileen, there was a lot of enthusiasm from employers about this when the request initially went out. What can we expect now that the Department of Labor has all of the submitted responses from employers and the public about potentially updating Schedule A?

Lohmann: It’s hard to say. Again, as you said, the next steps might depend on what happens with the election. And I know we’re saying that about a lot of things, but it’s true. Right now, we know that the Department of Labor does still have this on their agenda.

They do now have a lot of information to use as they determine their next steps, because there was a very strong comment response from the public. We know they’re working through them, and if they do choose to act on these comments, we most likely would see them put a proposed regulation on the regulatory agenda. We’ll have to wait and see, but we don’t anticipate seeing a proposed regulation coming out before the end of this year.

Steve, you discussed the registration portion of the H-1B modernization rule that was finalized and implemented already, but we know this was a pretty big rule. What are the key portions of the 2023 proposal that still need to be finalized? Which portions are employers paying close attention to?

Plastrik: You’re absolutely right. USCIS did finalize the parts related to the H-1B cap selection process that we talked about before, but there’s still a number of important provisions in there that haven’t been finalized yet.

Some of the ones that we’re keeping our eyes on are, first, extending the so-called cap-gap protections for students in F-1 status. The effect of this would be to allow qualifying students to remain in the U.S. and keep their work authorization for a longer period of time while USCIS processes their H-1B cap petition.

There’s also a proposal to codify deference to previous USCIS approvals. This would put into the regulations that when an employer files a renewal for an employee, USCIS will generally defer to the previous decision and approve the renewal as long as the job hasn’t changed.

Lohmann: We saw widespread support for those two provisions in comments filed by the business community, but we know there were some other provisions that were a little bit more of either a gray area or there were some concerns on the part of the business community. What were those?

Plastrik: You’re absolutely right, and these ones are a little bit more complicated.

First, there’s changes to the criteria that USCIS uses to determine if a role qualifies for H-1B status. This proposal rewords the so-called specialty occupation criteria for H-1B eligibility and could affect which types of occupations and which types of qualifications make someone eligible for H-1B status. Another one that’s more mixed is changes to the required relationship between the employer and the H-1B employee, along with the documentation that would be required to demonstrate eligibility.

Under the proposal, USCIS would look at whether the H-1B worker will be staffed to another entity, like a contingent worker, and in that situation would require additional documentation from both the employer and the other entity for the H-1B petition.

There’s also proposed changes to site visits and enforcement. The proposed regulation would make not cooperating with site visits from USCIS’ fraud detection and national security officers more likely to result in revocation or denial of the H-1B petition and similar petitions.

Eileen, given that there’s a lot of other parts to the H-1B modernization proposal that haven’t been finalized yet, when can we expect to see movement on this?

Lohmann: Steve, that’s a great question, and I think we are all kind of wondering that. The most recent regulatory agenda that the Department of Homeland Security published targets December 2024 to publish a final rule, and that description on the regulatory agenda says DHS continues to consider the suggestions made in public comments and intends to finalize the remaining provisions in one or more actions.

We still have not seen any movement on this, and it really remains to be seen at this point whether they will finalize the provisions in the final rule or potentially a subset of them. So we’ll be watching that very closely to see if it’s something they can get across the finish line before the end of this year.

Of course, again, we have the election coming up. There are concerns about some of the provisions you mentioned, Steve, but I think there are also concerns about what could happen if the Biden administration were to leave office without finalizing the rule. Under a potential second Trump administration, they might take that opportunity to make the rule more restrictive.

Plastrik: That’s a number of programs to keep straight: Keeping Families Together, Deferred Action for Childhood Arrivals, H-1B modernization. Eileen, looking ahead, what do we know about whether these programs and rules will remain in effect?

Lohmann: The future of those programs really depends on how the litigation plays out. The Biden administration is already defending Keeping Families Together, as I mentioned, along with the Deferred Action for Childhood Arrivals regulation DHS issued in 2022 and other executive actions, including a recent step to make DACA beneficiaries eligible for health coverage under the Affordable Care Act.

Many of the Biden administration’s policies are already under litigation, and so there’s a big question of whether, depending on the outcome of the election, will whoever is president in 2025 continue to defend those programs and try to implement them?

Given that all of these programs and policies we’re talking about were issued using executive action, I think it’s safe to say we will continue to be operating in a litigation-heavy environment unless and until Congress does something on immigration. Do you expect litigation once the H-1B modernization measures are finalized?

Plastrik: That’s a great question. It’s hard to know until we see what’s included in a final version of the H-1B modernization regulation, if it does become finalized under the Biden administration. In my opinion, litigation seems pretty likely. While there’s some provisions in there, in the proposal, that are widely seen as positive changes, there’s others that are likely to draw legal challenge if they’re finalized as they are in the proposal.

What do you think about that, Eileen?

Lohmann: I totally agree that it’s really hard to predict because we don’t actually know what will be in the final rule. I think timing is going to be a major factor in this because we’ll have to see when DHS actually issues a final rule.

Plastrik: January is coming up really quick. There’s not a ton of time for federal agencies to finalize these regulations that they’ve proposed. Eileen, I’m curious, do these kinds of midnight regulations that come toward the end of an administration, do they have a history of being reversed in some way?

Lohmann: Yeah, it really depends on where the policy is in the rulemaking process. An incoming administration can delay effective dates of policies and regulations that haven’t taken effect yet to give that new administration time to evaluate that policy or regulation and determine a path forward.

The Biden administration did that during the transition. Several of the regulations the Trump administration tried to push through at the end of 2020 were not actually finalized. The Biden administration was able to delay them and kind of revisit those issues and, in some cases, withdraw the regulation.

Plastrik: Now, I’m going to ask you to look into your crystal ball a little bit. What about some of the programs that we discussed before — the Keeping Families Together, DACA — what’s the likelihood of those being continued or reversed under both a Harris or Trump administration?

Lohmann: I would say, again, some of it depends on the outcome of litigation, but I would anticipate that a Harris administration would continue to defend both of those programs.

As a presidential candidate, Harris’ platform on immigration focused on providing relief for Dreamers and strengthening the DACA program. I can’t see her changing her stance on that. And the Keeping Families Together is really a Biden-Harris program, and so I don’t think there would be any change there. With, of course, the opposite being true under a potential second Trump administration. They would likely move to limit or eliminate most of the humanitarian programs and expansions of immigration and benefits that the Biden administration has put in place.

Plastrik: So it’s not just the outcome of the election, it’s also litigation and litigation before and litigation after the election, is what you’re saying?

Lohmann: Yes.

Are there any other outstanding regulatory agenda items that you’re watching, Steve?

Plastrik: Absolutely. There’s another item on the government’s regulatory agenda that’s aimed at improving the adjustment of status process, and this is the way that people apply for a green card while they’re already in the United States.

USCIS hasn’t published the proposed regulation for this, so we don’t have a lot of details on it, but it’s expected to streamline and clarify certain aspects of the process. USCIS intends its proposal to reduce processing times, reduce retrogression of immigrant visa categories and overall make the process more efficient.

The timeline for proposed changes to the adjustment of status process is unclear at this point. USCIS most recently intended to publish its proposal on this in August, but they haven’t done so yet, so we’ll have to wait and see.

Lohmann: That’s one that has been on the Biden administration’s agenda for some time and has been pushed back, so I agree — it really depends on what happens with the election if we don’t see it this year.

Plastrik: Turning to employer preparedness, keep an eye on where the election seems like it’s headed, and be nimble enough to adjust on the fly, because there’s just so many things going on. There’s the short time frame before the election, there’s the period after the election but before inauguration, there’s a short period to get these existing regulations finalized, proposed if they haven’t already done so, and then on top of that, you have litigation.

There’s just a lot to keep track of right now, and I think first and foremost, it’s just being aware, and getting your bearings, and thinking about how to be flexible and adjust to all those changes.

Lohmann: Yeah, absolutely. Things can change so quickly in this space, and so I think right now, it’s important to make sure you are in a position to be able to make decisions quickly in a changing environment and navigate how to communicate with your employees.

Sanabria: To prepare your immigration program for any election outcome, download BAL’s pre-election preparation checklist from our Election Resource Center page at bal.com.

And now, the top U.S. and global immigration news.

The U.S. State Department released the October Visa Bulletin this week showing advancement for China under EB-1 and EB-2 and advancement for all countries except China under EB-3.

In other U.S. news, the State Department implemented the new C-4 and D-3 visa classifications for noncitizens traveling to join vessels engaged in foreign trade and lightering activities, which involve the ship-to-ship transfer of cargo.

In global news, under Australia’s new National Planning Level limits, the government has set a total of 270,000 new international student commencements for the 2025 calendar year, effective Jan. 1, 2025.

Plus, Chinese embassies announced an extension of the policy exempting fingerprint collection for certain visa categories until Dec. 31, 2025.

Find all of our news at BAL.com/news. Follow us on X at @BAL_Immigration. And sign up to receive daily immigration updates in your inbox at BAL.com/newsletter.

We’ll be back next week with more insights from the world of corporate immigration.

I’m Rebecca Sanabria. Thanks for listening.

Copyright

The BAL Immigration Report is provided by BAL. Copyright 2024 Berry Appleman & Leiden LLP. All rights reserved. Digital redistribution to the public is permitted only with express written permission of Berry Appleman & Leiden LLP. This report does not constitute legal advice or create an attorney-client relationship. Visit bal.com for more information.