March 03, 2021
What has changed? What remains the same? The First 30 Days of the Biden Administration from a Business Immigration Perspective
Since taking office on January 20, President Biden has issued several directives reversing the previous administration’s immigration policies, while others remain in effect. Further, the U.S. Citizenship Act of 2021, a bill that could make significant changes to the U.S. immigration system if enacted into law, has been introduced in the House of Representatives and the Senate.
We have summarized below the most relevant updates from a business immigration perspective regarding these recent changes. The summary below reflects updates as of March 2, 2021.
Immigrant Visa Ban Rescinded
Presidential Proclamation 10014, which suspended issuance of immigrant visas, has been rescinded. This means that U.S. Embassies and Consulates around the world should resume immigrant visa processing soon. An immigrant visa is issued to those who intend to reside in the United States permanently.
The Department of State has announced that immigrant visa applicants who have not yet been interviewed or scheduled for an interview will have their applications processed according to the existing phased resumption of visa services framework, which is based on local conditions during the COVID-19 pandemic. As a result, each post’s ability to schedule new appointments will also likely differ based on facilities, staffing resources, and local conditions in each country. The Department of State recently announced that there are approximately 473,000 immigrant visa cases pending at the National Visa Center ready for interviews.
Geographic COVID-related Restrictions Remain in Effect
The travel restrictions relating to foreign nationals who have been physically present in the People’s Republic of China, Islamic Republic of Iran, Schengen Area, United Kingdom, Republic of Ireland, Brazil, and South Africa remain in effect.
The travel restrictions currently in effect suspend entry of foreign nationals who have been physically present in any of the above-referenced regions within the 14-day period before seeking entry into the United States, unless an exception applies. If you require assistance in determining whether an exception would apply to your case, please contact our office for assistance.
Non-Immigrant Visa Ban for H-1B and L-1 Visas Remain in Effect
Presidential Proclamation 10052, which suspends the entry of certain non-immigrant visa applicants, remains in effect. This proclamation includes those applicants applying for H-1B, H-2B, and L-1 visas; J-1 visa applicants participating in the intern, trainee, teacher, camp counselor, au pair, or summer work travel programs; and any spouses or children of covered applicants applying for H-4, L-2, or J-2 visas, unless an exception applies.
Although this proclamation could be rescinded sooner, it currently remains in effect until March 31, 2021. Unless extended, it will “sunset” on March 31, 2021. If you require assistance in determining whether an exception would apply to your case, please contact our office for assistance.
Discriminatory Bans on Entry Revoked
On January 20, 2021, President Biden issued a proclamation revoking various directives issued under the previous administration, which had suspended entry of certain nonimmigrants and immigrants from Burma, Eritrea, Iran, Kyrgyzstan, Libya, Nigeria, North Korea, Somalia, Sudan, Syria, Tanzania, Venezuela, and Yemen.
As a result, U.S. Embassies and consulates should resume visa processing for nationals of the above-referenced countries consistent with applicable law and visa procedures, including those relating to COVID-19, as detailed above.
DOL wage rule
The Department of Labor (DOL) has proposed to delay the effective date of the final rule on computation of prevailing wage levels. The current effective date is March 15, 2021 and would now be delayed to May 14, 2021. This is consistent with a White House memorandum issued shortly after President Biden took office that requested government agencies to consider postponing the effective dates for regulations that have not yet taken effect for 60 days.
If it goes into effect, such DOL rule would change the way prevailing wages are calculated and would result in a significant increase in prevailing wage levels for all occupations where the OES survey data is the prevailing wage source. This means higher wage requirements for positions associated with H-1B, H-1B1 and E-3 benefit requests as well as employment-based immigration visa petitions relying on OES-based prevailing wage determinations. The new rule will be implemented on July 1, 2021 and then adjustments to the wage determinations will be made on a phased approach.
This DOL rule is similar to the one introduced last year but was later set aside following litigation. Litigation is also expected against the new DOL rule if it goes into effect as planned on May 14.
Status of Public Charge Rule
President Biden has issued an executive order requiring government agencies to conduct a review ofrecent regulations, policies, and guidance that have set up barriers to the legal immigration system, and has ordered an immediate review of agency actions related to the implementation of the public charge rule.
However, it’s important to note that this executive order does not change the current requirements to file a Form I-944, Declaration of Self-Sufficiency as part of the permanent residency process for those individuals adjusting to permanent residency in the United States.
Negative COVID Test Required for Entry into the U.S.
Effective January 26, 2021, all air passengers entering the United States are required to obtain a COVID-19 test within 3 days before their flight to the U.S. departs, and provide written documentation of their laboratory test result to the airline or provide documentation of having recovered from COVID-19.
President Biden has also issued an executive order requesting specific government officials to assess this requirement for any further appropriate regulatory action needed to promote public health measures. This could mean additional negative tests following arrival into the United States or a quarantine period. However, as of March 2, 2021, there is no mandatory quarantine period following entry into the United States.
USCIS Reverts Back to Previous Civics Test for Naturalization Process
Beginning on March 1, 2021, USCIS will revert to the 2008 version of the naturalization civics test. Although USCIS had implemented a revised civics test in December 2020, it has now determined that the 2020 revisions may create potential barriers to the naturalization process. A civics test is administered as part of the naturalization process and applicants must demonstrate a knowledge and understanding of the fundamentals of the history, principles, and form of government of the United States. There will be a transition period where both tests are being offered and the 2020 test will be phased out on April 19, 2021, for initial test takers. Applicants who submit their naturalization application on or after March 1, 2021, will take the 2008 test.
US Citizenship Act introduced in the House of Representatives and Senate
Identical bills of the U.S. Citizenship Act of 2021 have been introduced in the House of Representatives and the Senate. If passed, this could bring significant changes to the U.S. immigration system. From a business immigration perspective, the U.S. Citizenship Act could reduce the employment-based visa backlogs and make it easier for graduates of U.S. universities with advanced STEM degrees to stay in the United States, among other changes. We will be discussing the U.S. Citizenship Act in more detail in future posts.