US president Joe Biden has launched a flurry of orders to help asylum seekers and refugees, but lawyers warn the picture is less certain for companies using high-skilled worker visas.
Biden has said he will lift the cap on refugees and stop building the border wall with Mexico. But Donald Trump’s ban on new issuances of green cards and worker visas commonly used by multinational businesses remains, in a sign that the new administration could maintain parts of the former president’s “Buy American, Hire American” policies.
Trump administration rules requiring higher wages for overseas workers using H-1B visas, designed to stop foreigners undercutting potential US hires, are also still scheduled to take effect.
Although the ban on worker visas, including H-1B and L visas, is set to expire in March, Biden’s failure to rescind the order worries immigration lawyers. They fear the administration will continue to view overseas workers as a threat to American employees.
“There was a view put forward by restrictionists in the Trump administration that jobs are fungible, and if you have a foreign worker in a job there’s not a job for an American worker, and that’s just not true,” said Leslie Dellon, an attorney specialising in business immigration for the American Immigration Council.
Dellon said she was concerned that the Biden administration had not rejected this viewpoint.
Even with the ban due to expire, Sharvari Dalal-Dheini, a former counsel for US immigration authorities and director of government relations for the American Immigration Lawyers Association, said it was “imperative” for the Biden administration to rescind it immediately. “If the administration remains true to what they said — that immigrants help drive our economy and kept us afloat during the pandemic — they need to take steps to rescind a ban that is undermining that belief.”
The US Chamber of Commerce and National Association of Manufacturers won a stay on the ban being applied late last year, but the case is ongoing. Lawyers say the ruling applies only narrowly and the majority of companies are not benefiting from it.
The administration is also set to implement a Trump-era rule raising the minimum wages that overseas workers must be paid to qualify for H-1B visas, which are commonly used by tech companies, among others. That rule will come into force later this year.
“There is a view within the Biden camp that US workers need protection from H-1B workers in terms of wages, or that somehow H-1B workers are undercutting the wages of US workers” said Jennifer Minear, an immigration lawyer at McCandlish Holton.
“It’s clear that the administration is in favour of legal immigration and wants to be supportive of it,” Minear said. “But there’s been some signalling from the administration that it intends to tighten and make more difficult some of the prevailing wage requirements for H-1B workers . . . so it’s not all going to be birthday cake for immigrants.”
Biden faces political hurdles if he is to reverse the Trump wage rules, which chime with many Democrats’ protectionist instincts on trade and immigration. “It’s usually the Democrats who are pushing for wage protections for US workers, so it may be really bad optics for the Biden administration to pull back these regulations,” said Jeff Joseph, a senior partner with Joseph & Hall.
Last year Dick Durbin, now the Democratic chair of the Senate judiciary committee, which oversees immigration policy, introduced legislation with Chuck Grassley, the top Republican on the Senate finance committee, to tighten restrictions on the H-1B and L visa programmes.
At the time, Durbin said that loopholes in the programmes allowed companies to “displace qualified American workers” and “facilitate the outsourcing of American jobs”.
The White House did not respond to requests for comment on its plans for non-immigrant visas, including whether it intended to rescind the ban and whether it would implement the rule increasing wage thresholds for H-1B visas.
There are some positive signs for companies hoping for fewer restrictions to H-1B visa issuance, however. A second Trump-era rule, requiring H-1B visas to be allocated according to wage levels and not via a blind lottery, was supposed to apply from March, but was delayed by the Biden administration on Thursday.
It is now set to come into force from the end of the year instead, after the Department of Homeland Security said it would not have time to overhaul its systems before the registration for the visas opens in March.
More broadly, lawyers hope that a change of tone from the administration will filter through to the career employees empowered to approve or deny applications, many of whom felt emboldened to err on the side of rejecting applications under the Trump administration.
“A lot of the tone of executive orders already issued is basically — ‘let’s not be racist any more’”, said Minear. “They send a signal from the administration to the public and to career employees in the federal government that there’s a new sheriff in town.”