A New Era for Immigration? Future Priorities and Business Immigration in the Post-Trump World

Written By: Lynn O’Brien, Senior Associate Attorney in the Northern Virginia office of Berry Appleman & Leiden LLP. 

With Terry Mastronikolas

Recently, we had a few chances to assess the situation with Lynn O’Brien at BAL to get a grip on the crisis confronting our industry as USCIS prepared to implement a new rule that would have modified the H-1B cap selection process, amended current lottery procedures, and prioritized wages. That crisis has been averted for now.  Also rocking the world of business immigration were the H-1B strengthening rule and the Department of Labor (DOL) interim final rule to incorporate changes to the computation of prevailing wage levels.  Employers experienced chaos and confusion overnight starting October 8, 2020, as they struggled to map higher wages to actual salaries offered. Luckily, the courts intervened and found that both rules were not promulgated properly under law and the Biden administration is taking time to review the revised rules.

Admittedly, Biden’s immigration outlook looks more favorable overall.

While many in the industry are gearing up for a welcome respite, some of the damage from last year may not be undone quite so fast. Lynn filled us in on the latest industry trends affecting registration, green card applications, and USCIS backlogs.

As any attorney working in business immigration will tell you, the last four years of RFE challenges ran the gamut from standard specialty occupation challenges on overdrive, questioning the intimate relationship between Computer Science and Computer Engineering (to take one absurd example), to blatantly ignoring documentation submitted in the initial filing. I recall being asked to prove Bachelor-level equivalence for applicants holding US Bachelor’s degrees!

The authors of the RFE boilerplate flexed their creative muscles to find new and more cumbersome and illogical ways of blocking and in many instances denying petitions, whether they were new petitions or extensions. And in doing so, they seemed to march in lockstep with the prior administration’s broadly-targeted “Buy American, Hire American” initiative.

The consequences were felt by all employers across all industries, although employers who file a large number of H-1B petitions, for example, in the tech industry were hit the hardest. Pandemic restrictions and hardline policies severely handicapped the H-1B program throughout the Trump era, especially in its final months, with some employers left wondering if the program is worthwhile. The numbers back them up: H-1B approvals peaked at 95.7% in 2015; after slumping 3% by 2017, the approval rating took another hit down to 84.5% in 2018 and has since remained below 90%. A minimum of 10% of cases getting denied may not seem like much. But by 2020, a whopping 40.2% of cases received an RFE, of which only 67.6% eventually saw approval.

As a result, employers that rely on foreign labor are still grappling with significant uncertainty regarding their future US capacities. After repeated RFEs last year, clients are reconsidering their hiring strategies and long term talent pool, and in some instances looking to move their workforce to a more immigration friendly country other than the US.

The numeric uncertainty was compounded by a whirlwind of incipient regulatory changes. DHS, DOL, and USCIS seemed poised to transform the H-1B program into a wage protection program by increasing wage levels and moving to a “highest salary, first served” wage-based lottery system.

In such an environment, many in the business immigration world are asking whether political upheaval will precipitate a reversal in fortune. The Democrats are thought to favor open borders, and this attitude is expected to extend to legal immigration policy and enforcement. And so far, so good: the Biden administration has already at least temporarily delayed Trump-era agency changes to business immigration, including the wage-level efforts mentioned above. Plus, Congress and the executive branch announced plans to move forward with progressive immigration reform under the banner of the Dream Act of 2021, and even consider comprehensive immigration reform.

It’s clear that a new era for immigration in the United States is taking shape. These developments indicate big, progressive changes and reforms to family immigration, migrant labor, and the asylum system. But it’s less clear how much of the blue wave will wash over business immigration specifically. For example, President Biden has expressed support for allocating visas based on wage as mentioned in his campaign platform.

While broad rejection of Trump’s regulatory efforts can naturally create a more positive immigration environment, without explicit guidance or regulatory changes from DHS and DOL, it’s unlikely that USCIS will see an urgent need to reform some of their current practices. We will have fewer hurdles to jump, but the hurdles that remain could be the most difficult of all: the hyper-granular RFEs we’ve come to recognize over the past four years in addition to the growing backlogs exacerbated by the pandemic.

Attorneys should, as always, hope for the best, but brace for the worst. At our office, we’ll be working with evaluation firms like Park to ensure that all of our clients have accurate credential evaluations, and, if needed, are ready to go through with smashing expert opinion letters that drive against USCIS RFE trends. Our industry isn’t out of the woods yet. How much further we must go depends in part on how active current political leadership will be in the business immigration sphere.

Lynn O’Brien is a Senior Associate Attorney in the Northern Virginia office of Berry Appleman & Leiden LLP. She concentrates her practice on business immigration matters including nonimmigrant and immigrant visa issues, advising clients on every step of the process.  She represents clients in various industries so that US employers can obtain the talent they need when they need it. It’s no surprise that she has spoken on topics including best practices for responding to Requests For Evidence since she loves the art of arguing with the government. She also frequently speaks on other topics including the unpredictable immigration environment and program management issues, bringing the insider perspective from a firm devoted exclusively to corporate immigration. She also wants you to know she can beat you at 80s music trivia.