Published on January 23, 2021
On his first day in office, President Biden issued a series of Executive Orders signaling his administration’s shift toward new immigration policies.
On January 20, 2021, President Biden signed the “Proclamation on Ending Discriminatory Bans on Entry to the United States,” rescinding two of the Trump Administration’s travel bans directed at predominately Muslim and African countries. Specifically, this order revokes the Trump Administration’s 2017 travel ban, which restricted the issuance of nonimmigrant and immigrant visas for individuals who are foreign nationals of Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen. Additionally, the order rescinds nationality-based immigrant visa restrictions that were imposed by Trump’s January 2020 travel ban against individuals from Burma/Myanmar, Eritrea, Kyrgyzstan, Nigeria, Sudan, and Tanzania. However, such individuals remain subject to other orders still in effect including various COVID-19 travel and visa restrictions.
President Biden also signed the “Preserving and Fortifying Deferred Action for Childhood Arrivals (DACA),” which reaffirms his administration’s commitment to deferred removal of undocumented individuals who qualify under the DACA program. The Department of Homeland Security (DHS) first issued DACA guidance in 2012 under the Obama Administration. The Trump Administration attempted to terminate DACA but was prevented from doing so by the U.S. Supreme Court, which held that the administration’s efforts to end DACA violated the Administrative Procedures Act (APA). This means that individuals who qualify for DACA may submit applications for relief and work authorization to U.S. Citizenship and Immigration Services (USCIS). DACA still remains subject to a separate legal challenge brought by the State of Texas and several other states.
Freeze on “11th Hour” Trump Administration Rules That Have Not Yet Taken Effect
President Biden issued a memorandum implementing a “freeze” of all regulatory actions set in motion by the Trump Administration that had not yet taken effect as of January 20, 2020. With limited exceptions for emergency situations, department or agency heads are to immediately withdraw from review all proposed rules that have not yet been published in the Federal Register. For published rules scheduled to take effect after January 20, 2021, the memorandum directs department or agency heads to consider postponing implementation of such rules for 60 days in order to carefully review the rules’ factual and legal basis as well as potentially provide a 30-day public comment period.
As a result of the memorandum, several “11th Hour” immigration rules that were rolled out during the final days of the Trump Administration have been withdrawn or are likely to be postponed. Specifically, DHS issued a final rule altering the definition of the “employee-employer” relationship for purposes of H-1B sponsorship. However, since the final rule was not published in the Federal Register before the Biden Administration transition, it will be withdrawn.
In addition, the published DHS final rule drastically altering the H-1B cap lottery selection process will likely be postponed by at least 60 days. This rule would require USCIS to use a wage-based preference system to replace the previously random H-1B lottery selection process, however, it was not scheduled to take effect until after January 20, 2021. Therefore, it is now under consideration for a 60-day delay. The rule will not impact the upcoming H-1B cap season for FY-2022, and would only go into effect prior to the H-1B cap season for FY-2023 (if not reversed by the Biden Administration or blocked by a legal challenge).
The published Department of Labor (DOL) final rule significantly raising prevailing wages will also likely be delayed from taking effect. This rule would alter the method by which DOL calculates prevailing wages and lead to a substantial increase in the minimum wage rate required for employees under the H-1B, H-1B1, E-3, and PERM programs. Since the rule was not set to take effect until March 15, 2021, long after the Biden Administration transition, it is also under consideration for postponed implementation and will likely be delayed until at least 60 days from January 20, 2021.
The immigration attorneys at Ryan Swanson are closely monitoring any changes to immigration laws and regulations during the early days of the Biden Administration transition. Please contact anyone in our Immigration Group for additional information regarding how the recent changes could impact your immigration status or business.
Amy Royalty can be reached at [email protected].
Jen Chen can be reached at [email protected].
Cody Nunn can be reached at [email protected].
Marsha Mavunkel can be reached at [email protected].
Janet Cheetham can be reached at [email protected].
Joel Paget can be reached at [email protected].
This message has been released by the Immigration Group at Ryan, Swanson & Cleveland, PLLC to advise of recent developments in the law. Because each situation is different, this information is intended for general information purposes only and is not intended to provide legal advice on any specific facts and circumstances. Ryan, Swanson & Cleveland, PLLC is a full-service law firm located in Seattle, Washington.