The U.S. Senate passed by Unanimous Consent an amended version of H.R. 1044, the Fairness for High-Skilled Immigrants Act of 2019 that was passed by the U.S. House of Representatives in 2019.

The Senate-passed bill eliminates per-country quotas for all employment-based immigrant visa and adds additional requirements for H-1B visas. See the bill here.

This bill increases the per-country cap on family-based immigrant visas from 7% of the total number of such visas available that year to 15%, and eliminates the 7% cap for employment-based immigrant visas. It also removes an offset that reduced the number of visas for individuals from China.

The bill also establishes transition rules for employment-based visas from FY2020-FY2022, by reserving a percentage of EB-2 (workers with advanced degrees or exceptional ability), and EB-3 (skilled and other workers) for individuals not from the two countries with the largest number of recipients of such visas. Of the unreserved visas, not more than 85% shall be allotted to immigrants from any single country. EB-5 is not included in the transition as it was in the earlier House version.

The Senate bill includes H-1B compliance provisions and limitations on Chinese immigrants affiliated with the Chinese government. We understand that House leaders have concerns with some of these new Senate-passed provisions and will amend the bill and send it back to the Senate for passage. Should the bill pass both Chambers, it will be sent to the president for his signature before it will go into effect.

With global travel disruptions reaching six months, lawful permanent residents (LPRs) and conditional permanent residents (CPRs) who are abroad and cannot currently travel back to the United States due to the Coronavirus Disease 2019 (COVID-19) pandemic are experiencing extended absences from the United States. Absences from the United States between six months to one year by a permanent resident may result in questioning at the time of reentry to the United States by the inspecting officer. Absences from the United States of more than one year can be more problematic. Those LPRs or CPRs who cannot, for whatever reason, return to the United States within the required timeframe may need to secure a “returning resident visa” from a U.S. consulate or embassy abroad.

LPRs or CPRs who have remained outside the United States for longer than one year, or beyond the validity period of a two-year re-entry permit, may require a returning resident visa to re-enter the United States and resume permanent residence. The returning resident visa is intended for LPRs or CPRs who departed the United States with the intention of returning to the United States, and only prolonged their stay outside the country due to circumstances beyond their control. For an LPR or CPR, qualifying reasons for remaining outside the United States for longer than one year or beyond the validity period of a two-year re-entry permit could include, but are not limited to, severe illness, pregnancy, third-party withholding of passport or travel documents, or government restrictions on outbound international travel such as those that may have been caused by the COVID-19 pandemic. Returning resident visa applicants must be able to justify their excessive absence from the United States due to circumstances “beyond their control” while presenting sufficient support for their continuous desire to promptly resume residence in the United States due to strong and continuous financial, employment, family, and social ties to the country.

LPRs or CPRs abroad with the possibility of remaining outside the United States for longer than one year, or beyond the validity period of a two-year re-entry permit, should be cognizant of the requirement of maintaining and being able to document continuous financial, employment, family and social ties to the United States. Such documents could include copies of U.S. income tax returns, property ownership documentation, employment documentation, and evidence of family and social ties, among other relevant documentation. This documentation will potentially establish that the original intent of the trip was temporary in nature. Due to the infrequent availability of appointment dates as U.S. consulates and embassies worldwide gradually resume routine services following initial closures due to COVID-19, returning resident visa applicants are encouraged to plan their applications sooner rather than later to avoid prolonging their stays abroad even further throughout the application process, which is substantively similar to that of other immigrant visa applications and also requires a medical examination.

*Special thanks to Chris Costa for his valuable assistance with this GT blog post.

Today, the U.S. House of Representatives approved H.R. 1044, the Fairness for High-Skilled Immigrants Act of 2019, that eliminates per-country quotas for all employment-based immigrant visa petitions by a wide, bipartisan vote of 365-65.

The bill includes language helpful to the EB-5 program relating to a transition period for implementation, as explained –

Fairness for High-Skilled Immigrants Act of 2019

This bill increases the per-country cap on family-based immigrant visas from 7% of the total number of such visas available that year to 15%, and eliminates the 7% cap for employment-based immigrant visas. It also removes an offset that reduced the number of visas for individuals from China.

The bill also establishes transition rules for employment-based visas from FY2020-FY2022, by reserving a percentage of EB-2 (workers with advanced degrees or exceptional ability), EB-3 (skilled and other workers), and EB-5 (investors) visas for individuals not from the two countries with the largest number of recipients of such visas. Of the unreserved visas, not more than 85% shall be allotted to immigrants from any single country.

A companion bill, S. 386 (Sen. Lee, R-UT) was being discussed for Senate floor consideration last month.  The bill drew H-1B compliance provisions that slowed momentum and interested Senators continue negotiations.

Please contact your GT attorney for specific questions.  We will update this matter as information becomes available.

For more on Employment Visas, click here. 

The heavily anticipated new Executive Order (EO), “Protecting the Nation from Foreign Terrorist Entry into the United States,” banning nationals from six countries from entering the United States, was signed by President Donald Trump on March 6, 2017 with an effective date 10 days following on March 16, 2017. This new EO revokes and replaces the previous EO 13769 signed on Jan. 27, 2017. The replacement EO provides additional clarification that stemmed from judicial review. For a summary of EO 13769, and a history of events that transpired, please visit.

Highlights of changes in the new EO include:

  • The six countries under the travel ban are Iran, Libya, Somalia, Sudan, Syria, and Yemen.  Iraq has been lifted from the travel ban.
  • Clarification has been given that lawful permanent residents are not subject to the travel ban, and dual nationals may use another passport (that is not from one of the six countries) to enter the United States.
  • Waivers may be granted to individuals applying for a visa who are subject to the travel ban if: 1) denying entry during this period would cause undue hardship, 2) the entry would not pose a threat to national security, and 3) it would be in the national interest of the United States. Examples were provided of situations where a waiver would be appropriate.
  • Entry under the U.S. Refugee Admission Program will be halted for 120 days from March 16, 2017. Notably, the blanket halt on Syrian refugees has been removed.
  • The Visa Interview Waiver Program is suspended until further guidance from the Department of State.
  • Those who are in the United States will not have their visas revoked.

The new EO provides an explanation for some components of EO 13769 that are now rescinded, amended, or clarified in this Order. A section-by-section analysis is below:

Section 2:  Suspension of Visa Issuance- Iraq Removed

The text of this EO calls for the suspension of issuance of visas to nationals of Iran, Libya, Somalia, Sudan, Syria, or Yemen, except in case-by-case waivers, for 90 days from the effective date of the EO (March 16, 2017), while an ongoing assessment of the countries for terrorist threats is conducted. Notably, Iraq has been removed as one of the original countries subject to the travel ban. The reason cited is that the United States has been closely working with the Iraqi government and because of the military presence in Iraq, and Iraq’s commitment to fight ISIS, removing this country from the travel ban is justified.

In addition, the Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, will conduct a worldwide review to identify additional information, if necessary, from any country to ensure that the individual applying for a visa benefit is not a security threat. Within 20 days of March 16, 2017, a required report will be submitted to the President on the results of the worldwide review. Copies of this report will also be given to the Secretary of State, the Attorney General, and the Director of National Intelligence.

Once the report has been submitted to all parties, the Secretary of State shall request the foreign governments to provide the information needed within 50 days of notification. After the 50 day period has expired, the Secretary of Homeland Security, with the Secretary of State and the Attorney General, will submit to the President a list of countries where certain categories of foreign nationals should be prohibited from visa issuance because they have not provided the information. Additional countries may also be submitted for consideration to be added to the list of countries where restrictions or limitations are deemed necessary to protect the United States. In the same way, countries may be recommended for removal from the list as well.

Four reports, each submitted within 30 days of the effective date of the Order (March 16, 2017) to President Trump, are required to document the progress.

Section 3:  Scope and Implementation of Suspension

Application:  The suspension of entry into the United States will only apply to foreign nationals from Iran, Libya, Somalia, Sudan, Syria, or Yemen who are outside of the United States as of March 16, 2017; did not have a valid visa as of 5 p.m. EST on Jan. 27, 2017; and do not have a valid visa on March 16, 2017.

Exceptions: The suspension of entry will not apply to the following individuals even if the person is a national of Iran, Libya, Somalia, Sudan, Syria, or Yemen:

  • A lawful permanent resident of the United States;
  • A foreign national who is admitted to or paroled into the United States on or after March 16, 2017;
  • Any foreign national who has a travel document other than a visa stamp that is valid on March 16, 2017, or any date afterwards that would permit travel into the United States;
  • A dual national of one of the six countries (Iran, Libya, Somalia, Sudan, Syria, or Yemen) but traveling on a passport not from one of the six countries;
  • Any foreign national traveling on a diplomatic or diplomatic-type visa, NATO visa, C-2 visa, or G-1, G-2, G-3, or G-4 visa;
  • Any foreign national who has been granted asylum; a refugee who has been admitted to the United States; or any person who has been granted withholding of removal, advance parole, or protection under CAT (Convention Against Torture).

Waivers:  A consular officer or a Customs and Border Protection (CBP) officer may, in their discretion, decide on a case-by-case basis, if the person has demonstrated that:

1) denying entry during this period would cause undue hardship;

2) denying entry during this period would not pose a threat to national security; and

3) it would be in the national interest to issue a visa to, or grant entry to, one whose entry would otherwise be suspended.

If a consular officer issues a waiver to grant a visa, then that waiver will apply to the entry on the visa as well. Individuals in the following situations may qualify for a waiver:

  • The foreign national was previously admitted to the United States for a continuous period of work, study, or other long-term activity, and who was outside the United States on March 16, 2017, and is now seeking reentry to the United States to resume that activity. The foreign national will also need to show that denial of entry during the suspension period will hinder the activity.
  • The foreign national has significant contacts in the United States, but was outside the United States on March 16, 2017, for employment, studies, or other lawful activity.
  • The foreign national wishes to enter the United States for significant business or professional obligations, and denying the entry would hinder the obligations.
  • The foreign national is seeking to enter the United States to visit or live with a close U.S. citizen family member, LPR, or individual who was admitted in non-immigrant status, and the denial of such entry would cause undue hardship.
  • The foreign national is a young child or adoptee, a person needing urgent medical care, or whose entry is otherwise justified by the special circumstances.
  • The foreign national has been employed by the U.S. government (or is a dependent of such employee) and has provided valuable and faithful service at the time to the U.S. government.
  • The foreign national is traveling for meetings or business with the U.S. government representing an international organization designated under the International Organizations Immunities Act.
  • The foreign national is a Canadian immigrant and who is applying for a visa within Canada.
  • The foreign national is traveling in the capacity of a U.S. government-sponsored exchange visitor.

Section 4:  Additional Inquiries Regarding Iraqi Nationals

A thorough review and, if necessary, consultation with a designee of the Secretary of Defense will be required for applications by any Iraqi national for a visa, admission, or other immigration benefit. The thorough review will include consideration of whether there are ties to ISIS, or any other terrorist organization, and whether the individual will pose as a threat to U.S. national security.

Section 5:  Uniform Screening and Vetting Standards for All Immigration Programs

The text of the EO proposes to implement the following to better identify those who seek to enter the United States to harm the country:

  • Develop a uniform baseline for screening procedures, including in-person interviews;
  • Establish a database for identity documents to ensure duplicates are not used by different applicants;
  • Utilize application forms with amended questions aimed at identifying fraudulent answers and malicious intent; and
  • Identify questions to evaluate whether the applicant has the intent to commit criminal or terrorist acts in the United States.

The Secretary of Homeland Security will be required to submit a report to the President 60 days from March 16, 2017, on the progress of these initiatives for a new screening and vetting program.  A second report will be due 100 days from March 16, 2017; and a third report 200 days from March 16, 2017.

Section 6:  U.S. Refugee Admission Program Suspension for the Fiscal Year 2017

President Trump, through this EO, is temporarily suspending USRAP, effective March 16, 2017, for 120 days. Syrians are included in this temporary suspension and not signaled out for indefinite suspension during this 120 day period. A review will be conducted to determine and change the adjudications procedure. This will not apply to refugees who have been formally scheduled for transit by the Department of State prior to March 16, 2017.  U.S. refugee admission will resume under the USRAP 120 days after March 16, 2017.

In addition, the text of the EO limits the number of refugees per fiscal year to 50,000, until the President determines that additional entries would serve the national interest.

The EO includes a provision that would allow the admission of refugees on a case-by-case basis, if it is in the national interest. The Order also includes a provision to assist state and local jurisdictions with their involvement in the resettlement process.

Other Provisions

The EO includes other provisions related to the entry of foreign nationals into the United States. These include the following:

  • Section 8: Expedited completion of the biometric entry-exit tracking system. Three reports shall be submitted within 100 days; 200 days; and 365 days of March 16, 2017, respectively, and a report shall be submitted every 180 days until the system is completed and operational.
  • Section 9: Visa Interview Security. The visa interview waiver program will be suspended until further notice or guidance from the Department of State. This would require individuals who would otherwise be qualified for a visa interview waiver to appear at the U.S. consulate or embassy in person for an interview. The visa interview program suspension will not be applicable for those applying for a diplomatic or diplomatic-type of visa (NATO, C-2, G-1, G-2, G-3, or G-4; or traveling under the IOIA for business purposes). In addition, the Secretary of State is instructed to expand the Consular Fellows Program where allowable to alleviate consulates and embassies abroad of workload.
  • Section 10: Review and Change of Visa Validity Reciprocity. The Secretary of State is required to review all nonimmigrant visa reciprocity agreements, including all categories, duration of time, and fees. If the foreign country does not treat the U.S. national in a reciprocal manner, the Secretary of State will adjust the conditions to match.
  • Section 11: Reports for Transparency and Data Collection. The Secretary of Homeland Security will publish a report for public viewing, every 180 days from March 16, 2017, a list of foreign nationals who have been charged, convicted, or removed from the United States based on terrorism-related activity; the number of foreign nationals radicalized after entry into the United States; information regarding the number and types of acts of gender-based violence against women; and any other relevant information.  The first report will cover the time period from Sept. 11, 2001, to the report’s due date.
  • Section 12:  Enforcement. This section provides text for the following:
    • The Secretary of State and the Secretary of Homeland Security are instructed to work with the appropriate domestic and international partners to ensure compliance and implementation of the contents of this EO.
    • Opportunities will still be given to those individuals to claim a fear of persecution or torture to make their applications for asylum.
    • There will be no revocation of an immigrant or nonimmigrant visa that was issued prior to March 16, 2017.
    • Those whose immigrant or nonimmigrant visas had been revoked due to EO 13769 will be able to apply for a new travel document and seek entry.
    • The EO will not apply to any person who was granted asylum, who is a refugee admitted to the United States, or to a person granted withholding of removal or protection under CAT. A person will still be able to seek asylum, withholding of removal, or protection under CAT.

As this Order is expansive, Greenberg Traurig will continue to monitor the conditions and changes. In addition, we expect additional EOs related to immigration in the coming days and weeks. To receive updates, please subscribe to our blog.

Beginning Feb. 16, 2016, USCIS began reissuing receipt notices on Form I-797 to applicants who continue to have pending applications for renewed employment authorization (EAD applications) under certain categories that were originally filed between July 21, 2016 and Jan. 16, 2017. EAD applications that were filed during this window did not fall within the benefits of the finalized rules to modernize and improve employment-based non-immigrant and immigrant visa programs, published by the U.S. Department of Homeland Security, and which took effect on Jan. 17, 2017.

Specifically, USCIS began reissuing EAD receipt notices for the below categories because some of the receipt notices issued by USCIS between July 21, 2016 and Jan. 16, 2017 did not indicate the EAD category.  These EAD categories are:

  • (a)(3) Refugee
  • (a)(5) Asylee
  • (a)(7) N-8 or N-9
  • (a)(8) Citizen of Micronesia, Marshall Islands, or Palau
  • (a)(10) Withholding of deportation or removal granted
  • (c)(8) Asylum application pending
  • (c)(9) Pending adjustment of status under section 245 of the Immigration and Nationality Act
  • (c)(10) Suspension of deportation applicants (filed before April 1, 1997), cancellation of removal applicants, and special rule cancellation of removal applicants under NACARA
  • (c)(16) Creation of record (Adjustment based on continuous residence since January 1, 1972)
  • (c)(20) Section 210 Legalization (pending Form I-700)
  • (c)(22) Section 245A Legalization (pending Form I-687)
  • (c)(24) LIFE Legalization
  • (c)(31) VAWA self-petitioners

As part of the finalized rules that took effect on Jan. 17, 2017, USCIS indicated on the EAD renewal receipt notice the EAD category for renewal applications that were filed after Jan. 16, 2017. Under the finalized rules, applicants could present the EAD renewal receipt notice to their employer as a valid List A document for Form I-9, Employment Eligibility Verification, to show that they had continued work authorization for 180 days while USCIS reviewed their EAD renewal applications. By reissuing the receipt notices to EAD renewal applicants who filed applications between July 21, 2016 and Jan. 16, 2017 under the above-listed categories, these EAD renewal applicants can present the reissued receipt notice to their employer for Form I-9 and take advantage of the finalized rules providing 180-day extensions in employment authorization.

Absent from the above-listed EAD categories are dependents of popular employment-based nonimmigrant visas, such as the H-4, L-2, and E-3D, as well as EAD applicants who have Deferred Action for Childhood Arrivals (DACA), or Temporary Protected Status (TPS), which give applicants authorization to remain in the United States.

Applicants who file for an EAD renewal based on TPS already receive a 6-month extension through the Federal Register notice that extended their respective country’s TPS designation. For the other EAD renewal applicants, they must present the actual EAD to their employer to verify their continued employment authorization. The specific categories are noted below:

  • (a)(17) Spouse of an E nonimmigrant
  • (a)(18) Spouse of an L nonimmigrant
  • (c)(26) Spouse of an H-1B nonimmigrant
  • (c)(33) Consideration of Deferred Action for Childhood Arrivals

For more information please contact your Greenberg Traurig attorney.

As immigration reform moved toward approval by the Senate Judiciary Committee on May 21, 2013, another stand-alone bill (H.R. 2131) has been introduced by Rep. Darrell Issa (R-Calif.) in the House.  Mr. Issa is the chairman of the House Oversight Committee but, more importantly to the immigration reform debate, he sits on the House Judiciary Committee.  Mr. Issa’s “Skills Visa Act” includes, among other things, provisions that will impact the EB-5 program, and also proposes two other programs that would give entrepreneurs alternatives for pursuing permanent residence.

The EB-5 Changes Include:

  • Permanent Reauthorization: The bill would make the program permanent. It is currently set to sunset in 2015 absent Congressional reauthorization.
  • Minimum investment: The minimum investment amounts would be increased to reflect the change in the value of the dollar from the program’s creation in 1990 to the present day and would be prospectively indexed for future inflation. This could increase the base amounts of investment by almost $300,000 initially.
  • Job Creation: USCIS currently requires that the job creation requirement be met two years after the grant of a conditional green card when an investor seeks the removal of the conditional status of their permanent residence or “at a reasonable time thereafter.”  The bill states that the required jobs must actually exist at the time that the conditional status is removed and allows USCIS to extend the conditional status for an extra year in order to give an investor additional time to create the required jobs.
  • Targeted Employment Areas: In an effort to prevent the “gerrymandering” of low-unemployment areas into targeted employment areas, the bill provides that 1) the relevant “targeted employment area” must fit entirely within a geographical unit that the U.S. Department of Labor has determined has an unemployment rate of at least 150 percent of the national rate; 2) the U.S. Secretary of Labor shall set forth a uniform methodology for determining whether an area qualifies as having unemployment of at least 150 percent of the national rate; and 3) USCIS will not be bound by the decision of any other entity that a particular area has experienced high unemployment. This provision could hamper TEA designations.
  • Fraud Deterrence: In order to deter fraud, the bill bars persons from involvement in regional centers who 1) have committed crimes that are considered aggravated felonies under the Immigration and Nationality Act (INA); 2) would be inadmissible pursuant to the security and terrorism-related grounds of inadmissibility (if they were aliens seeking admission); or 3) have been convicted of criminal securities fraud or have been found to have engaged in civil securities fraud. Additionally, the section clarifies and expands the U.S. Department of Homeland Security’s (DHS) authority to perform criminal record and background checks on regional center managers, owners, administrators, promoters, and others who have significant responsibility in the regional center. DHS may terminate regional centers from participation in the investor visa program if prohibited persons are involved in the centers or if the centers provide false information in the context of background checks.
  • Securities Compliance: The bill requires regional centers to certify compliance with Federal securities laws. USCIS could terminate regional centers for failure to make the necessary certifications or for securities law violations.

Changes to Permanent Residence Options:

As noted above, the bill creates two new permanent residence options for foreign entrepreneurs.

  • The first program is for venture capital-backed entrepreneurs who attract investment of at least $500,000 from a qualified venture-capital operating company or at least $100,000 from a qualified angel investor.   The entrepreneur would be given conditional permanent residence for up to three years to create jobs for at least five U.S. workers and two years to raise an additional $1,000,000 in capital or generate not less than $1,000,000 in revenue.
  • The second program is for foreign entrepreneurs who have been operating businesses in the U.S. under the E-2 treaty investor non-immigrant visa program.   This program would make permanent residence available to E-2 treaty investors who have maintained their status for a minimum of 10 years and have created jobs for at least five U.S. workers for a minimum of 10 years.

Every fiscal year (October 1st – September 30th), approximately 140,000 employment based immigrant visas are made available to qualified applicants.  These employment based visas once approved serve as the basis for an individual’s green card application once approved.  Spouses and minor children under 21 years of age may accompany or follow-to-join employment based immigrants.

Employment based immigrant visas are divided into five preference categories. The EB-5 category is allotted 7.1% of the yearly worldwide limit of employment based immigrant visas. This translates to approximately 10,000 immigrant visas per year in the EB-5 category.  The 10,000 figure includes derivative visas for the spouses and minor children of investors.  The regional center pilot program allocates 3,000 green cards each year for individuals who invest in USCIS designated regional centers.  In stakeholder meetings, USCIS has confirmed that the 3,000 is not a limit, just the amount reserved specifically for regional center based petitions.  Likewise, of the 10,000 immigrant visas available for investors, 3,000 are set aside for EB-5 cases located in targeted employment areas.

Within each employment based immigrant visa preference category, each country can only use 7% of the annual total of immigrant visas each year.  When the demand in a particular preference category exceeds the available supply, a backlog can develop. China and India far exceed the maximum annual number of visas allotted to them each year in the EB-2 and EB-3 category and as such have extremely lengthy backlogs.

Though the maximum amount of EB-5 visas has never been used and no country has reached its quota limit, usage has certainly risen.  To compare, in 2006 only 502 visas were used.  In 2011, 3,463 visas were issued.  IIUSA has compiled a resource listing of EB-5 visa statistics available here that demonstrate usage trends over the past five years.   If this rate continues, the cap for the EB-5 visas may be reached in the next couple of years.  It will be interesting to continue to monitor the EB-5 regional center reauthorization efforts to see if an increase in numbers will make its way into the pilot program extension bill.

By Laura Reiff and Nataliya Binshteyn

According to the White House, President Obama will unveil his plan for comprehensive immigration reform during a visit to Nevada on Tuesday, January 29. Calling reform “a top priority” of his second term, the president will call for legislation that creates a path to citizenship for the millions of undocumented immigrants currently living in the United States.

According to House Democratic Caucus Chair Xavier Becerra (D-California), President Obama’s recent meeting with senior members of the Congressional Hispanic Caucus (CHC) underscores “the great sense of urgency” around this issue, described as the president’s “top legislative priority.” The CHC’s recently released nine-point plan for comprehensive reform includes a pathway to permanent residency and eventual citizenship for undocumented immigrants, new employment visas for skilled workers, and the creation of an employment verification system for workplace compliance with immigration law. The proposal is expected to serve as blueprint for the president’s plan, which does not appear to contain provisions for a temporary guest worker program.

According to reports, the president’s announcement will not include the bipartisan Senate working group proposals also scheduled for release next week. One of the Congressional leaders spearheading this effort, Senator Marco Rubio (R-Florida), has also proposed a plan that contemplates citizenship for undocumented immigrants currently living in the United States. Senator Rubio’s proposal, which deviates from the Republican party’s long-held position that offering citizenship to undocumented immigrants could amount to amnesty, includes a series of steps for obtaining legal status, such as fines, back taxes, background checks, and a lengthy probationary period. For its part, the White House stated that it sees a “new willingness” to effect bipartisan progress on comprehensive immigration reform and hopes that the “dynamic” of partisan gridlock “has changed.”

The Biden administration has revoked Presidential Proclamation 10014 of April 22, 2020 -Suspension of Entry of Immigrants Who Present a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak (PP 10014).

PP 10014 was intended to stop the issuance of immigrant visas at embassies and consulates abroad in order to protect the U.S. labor market; however, it contained many notable exemptions. Exempt from PP 10014’s restrictions included immigrants with valid visas, those seeking to enter the United States in certain medical professions, EB-5 visa holders, immediate relatives of U.S. citizens, members of the U.S. armed forces and their immediate relatives, and those whose entry was deemed to be in the national interest, among others.

It is not clear whether PP 10014 has actually protected the U.S. labor market, given that by law the majority of employment-based immigrants must satisfy a labor market test or have shown such a test is unwarranted (i.e., extraordinary ability, national interest waivers or multinational managers). As the Biden administration noted in its presidential proclamation, PP 10014 appeared mostly to harm the United States by preventing certain family members of U.S. citizens and lawful permanent residents from entering the country. In that manner, PP 10014 served to function as a ban on family-based immigration and diversity visas. The U.S. immigration system was constructed by Congress to favor family-based immigration, and PP 10014 overturned that careful construction, leading some to believe that the Trump administration was using the pandemic as a pretext to push through an anti-immigrant agenda. Diversity visa winners were forced to sue in federal court for the right to utilize their lawfully obtained benefit to immigrate and have recently seen their visa expiration dates extended at the U.S. district court level.

While this will be a welcome step by many, it may not satisfy immigration advocates’ expectations of a full rollback of the Trump administration’s pandemic-related immigration restrictions. The Biden administration has not revoked Presidential Proclamation 10052 of June 22, 2020 – Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak (PP 10052), which has restricted the issuance of H-1B, H-2B, J and L visas from abroad. PP 10052 has also been subject to litigation and was enjoined at the U.S. district court level; however, that ruling was restricted to the plaintiff organizations and their members. This effectively limited the injunction to members of the National Association of Manufacturers, the U.S. Chamber of Commerce, the National Retail Federation, TechNet, and Intrax, Inc.

In addition to PP 10052, the Biden administration has also continued the Trump administration’s suspension of the entry of certain travelers who spent any part of the 14-days prior to entry in the Schengen Area, United Kingdom, Republic of Ireland and Brazil. These restrictions overlap with the CDC requirement that all travelers to the U.S. obtain a viral test within three days of flight departure, leading some to find that the suspension of entry should be reconsidered.

Lastly, the final challenge to restoring the U.S. immigration system will be the restoration of routine visa services at embassies and consulates worldwide. Since the pandemic began, many embassies and consulates have completely shut down or severely restricted visa processing, both for immigrant and nonimmigrant visas. While these restrictions are largely pandemic-related and are in place with good reason, they have the effect of stymieing lawful immigration, as most foreigners who require a visa to enter the United States cannot obtain one, and therefore, cannot enter the country. This shadow ban on immigration affects all applicants, including family-based and employment-based immigrant and nonimmigrant visa holders. It is also the most inconsistent, as visa applicants are at the mercy of the operations of the consulate or embassy with jurisdiction over their foreign country of residence. Some embassies, like London, have severely restricted visa processing, while others, like Panama, are processing certain immigrant and nonimmigrant categories. In another example, the Amsterdam Embassy recently switched to only providing emergency nonimmigrant visa services despite the in-country case average hovering near its rate from October, a time when the embassy had expanded services. Visa applicants generally cannot shop around, as most embassies and consulates restrict processing at their location to residents of the jurisdiction they cover and, if they could apply at a different embassy or consulate, would have to pay a new visa fee.

While it is generally believed that the Biden administration will ultimately also revoke PP 10052 and resume routine consular operations worldwide (with appropriate pandemic-related measures), those actions cannot come soon enough for immigrants caught in limbo, many of whom are separated from loved ones or unable to start work.

On the first day of his presidency, Joe Biden is sending to Congress his marker for an overhaul of the U.S. Immigration Laws. See link to summary here.

The Biden administration proposes broad changes that will impact immigration law across the board and will also have a significant impact on business immigration if ultimately passed by Congress.

The U.S. Citizenship Act will:

  • Provide a pathway to citizenship for many immigrants who have a destabilized status in the United States, including DACA recipients, essential workers, and TPS holders
  • Provide relief to employment and family immigrant visa backlogs
  • Address the causes of illegal migration

Some of the key details of the legislation that will be important in the business immigration context include:

Earned Permanent residence status and Path to Citizenship

  • Create a path to earn permanent residence and citizenship for certain undocumented individuals. Individuals would apply for legal status or green card lawful permanent resident status for five years and then for more permanent green card status after three years. They would need to pass background checks and pay taxes. Dreamers, TPS holders, and agricultural immigrant workers who meet specific requirements are eligible for green cards immediately under the legislation. Applicants must be physically present in the United States on or before Jan. 1, 2021.
  • Reducing Family Visa Backlogs. The proposal would clear backlogs, recapture unused visas, eliminating lengthy wait times.
  • The proposal would allow immigrants with approved family-sponsorship petitions to join family in the United States in a temporary status while they wait for green cards to become available.
  • Employment-Based immigrant backlogs. This proposal would clear employment-based visa backlogs, recapture unused visas, and eliminate per-country visa caps. The proposal would exempt graduates of U.S. universities with advanced STEM degrees from immigrant visa caps.
  • The proposal creates a pilot program to stimulate regional economic development, by giving DHS the authority to adjust immigrant visa numbers based on economic conditions

This bold legislative proposal is the new administration’s wish list for immigration reform. Congress will now need to take the initiative to craft an immigration bill that can pass both the Senate and the House. Congress has taken up the Comprehensive Immigration Reform challenge over the last two decades. The most recent piece of legislation was S. 744, passed during the Obama administration in 2013. The legislation was passed by the Senate but ultimately was never taken up the House of Representatives.

The complex issue of non-immigrant visas such as H-1B, L-1, H-2B, and any new visa category for the future flow of workers has not been addressed by the Biden proposal and will need to be part of the debate.