The Future of the Work Visa Under Biden’s Presidency

By: Rachel Horner

Joe Biden has a long list of pressing issues awaiting him once he is inaugurated as the 46^th President. For the immigrants affected by the Trump Administration’s policies on work visas, there’s hope that immigration is towards the top of that list.

While the Trump Administration has made attempts to restrict who can enter the country by revising America’s immigration system, the H-1B program became a larger target after the pandemic began to affect the United States. In June 2020, Trump issued Proclamation 10052, which suspended H-1B visas from being issued. Soon after, with the sharp decrease in immigration , USCIS almost furloughed a significant portion of their employees. However, a judge in California blocked the travel ban from continuing, preventing the USCIS furloughs, and Proclamation 10052 will no longer be in effect after December 31^st, 2020.

Consequently, two major IFRs (Interim Final Rules) have since been proposed by government agencies. For one, the DOL proposed and passed a rule that significantly increases the minimum wage required for those on work visas. The rule has been challenged in court twice thus far. The second IFR, proposed by the DHS, restructures the definition of “specialty occupation” and tightens the ability for employees to work at third-party sites, which is a common practice for many tech giants like IBM, Microsoft, and others, as well as the big tech consultancies.

Though Biden has won the presidential election, it is unsure whether he will be able to reverse these policy changes right away. Some issues he will have to face have festered despite the Trump Administration, such as the severe backlog of cases at USCIS that dates back more than several years. The November Bulletin extended relief to some, as USCIS announced that those with visa applications between 2009 and 2015 could file for an Adjustment of Status; but it is still clear that outside factors, including the pandemic, will continue to affect immigration and the ability of USCIS to process cases.

There are many routes Biden can take once he begins to address the state of the work visa. On one hand, he may choose to immediately discard all changes made recently. He may also simply wait for these policies to expire. While the only certainty is that Joe Biden will not enforce the same immigration laws, it will be interesting to see if he aims to return the work visa back to business or if he will address the underlying points of failure in the process.