President Biden’s first 3 weeks in office have brought major changes to the nation’s immigration system. We’ve highlighted some of these changes in earlier posts such as the president’s plan to reunify separated children with their parents and the decision to terminate construction of a wall on the southern border. However, over 1000 anti-immigration policy changes implemented by the previous administration will need to be untangled by President Biden.
It will take the new administration considerable time to reverse the myriad of problems caused by their predecessors. The previous administration intentionally created confusion and put up obstacles to applicants seeking employment-based visas. For example, as described below, scientists, physicians and researchers seeking a visa based upon extraordinary ability, athletes with a P-1A, and business professionals applying for an EB-1(c), received a denial and were not afforded an opportunity at responding to an RFE.
Here are just a few of the policy and regulatory changes we can expect the Biden administration to tackle. In fact, the effort to fix these problems has already begun:
EMPLOYMENT-BASED PETITIONS ARE DENIED WITHOUT ISSUING A RFE
On September 11, 2018, USCIS began denying employment-based and family-based petitions without issuing a request for evidence (RFE). They also decided to deny applications without issuing a notice of intent to deny (NOID), under certain circumstances. This policy was a reversal of the Obama administration’s decision of June 3, 2013 that required the USCIS to issue an RFE in almost all cases, absent some valid statutory basis. An RFE was always required unless there was “no possibility” that the submission of additional evidence would suffice. The Biden administration will endeavor to address this problem that has affected many thousands of applicants as it enacts much-needed immigration reform.
GREEN CARD DELAYS
On October 21, 2017, USCIS began requiring in-person interviews for some green card applicants. This policy was created because the previous administration wanted to limit immigration into the country. The result of the in-person interview was to significantly delay the approval of green cards. The change has affected those with employment-based visas who are seeking an adjustment of status such as those with an H-1B and L-1. It also negatively affects the petitions of refugee family members as well as those granted asylum.
H-1B SELECTION PROCESS
On January 8, 2021, just 12 days before the start of the Biden administration, the predecessor announced that the Department of Homeland Security published a final rule to eliminate the random H-1B lottery and replace it with a selection process based on the wage-levels. The random selection of foreign professionals has been the norm but this change will instead prioritize those applicants that have been offered high salaries. The Biden administration is expected to freeze this regulation ahead of the lottery process. The new rule negatively affects small businesses that cannot pay wages as high as larger companies. It would also make it harder to hire foreign workers that are in the early stages of their careers.
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