After 4 years of a government focused on diminishing immigration to the United States, the final days of Donald Trump have been dedicated to modifying the immigration processes for foreign travelers and workers as well as U.S. businesses.
Restriction on access to H1B Visas for foreign workers, elimination of work authorization for people with suspended deportation, restrictions on travel, delayed work authorization eligibility for new asylum seekers, unlawful limitation on DACA and termination of TPS are the final blows to block worthy and eligible immigration as well as free trade and travel.
With the transition to a Biden – Harris administration, and the nomination of Alejandro Mayorkas as Secretary of Homeland Security, the country is feeling a certain kind of relief. But, to revert all these new regulations and Presidential proclamations, President-elect Biden will need time, and this time can be months, even a year, to turn everything to order.
For immigration law firms, the tension has started to rise. Clients calling, worried about their cases and legal status, is the new day by day routine. Law firms are challenged to find the best advice and guide their cases in the safest way possible.
H-1B visa limitation
If we talk about H-1B visas, it is a category which allows foreign Bachelors, Masters and PhD students with specialties to work in the United States. On November 2, 2020, USCIS published a proposed rule that would alter how those H-1B specialists are selected. If implemented, the current random selection process would be replaced with one that prioritizes specialists who are paid the highest salaries for the most experienced professionals, dramatically reducing access to the H-1B visa program for early-career professionals and small businesses who need them to join in growing those businesses .
Business groups, including the US Chamber of Commerce and the National Retail Federation, were in federal court on November 23rd, to challenge restrictions on H-1B visas for tech workers, doctors, professors, and others. They argued that the government did not adhere to the Administrative Procedure Act in moving forward with the changes to H-1B rules. Therefore, the change should fail.
The most affected will be early-career professionals, including those who have completed Bachelor’s, Master’s or Doctoral degrees at U.S. colleges and universities. The proposal impacts a wide range of U.S. employers and industries, including the healthcare and technology industries, among others. The case states, “For example, foreign-born doctors who have recently graduated and have entered their residency would have no chance of obtaining an H-1B visa under this new rule”.
DACA and Chad Wolf
On July 28, 2020, Chad Wolf, the Secretary of Homeland Security, issued a memorandum that effectively suspended DACA. The suspension was voided by a court’s finding that Mr. Wolf was not lawfully serving as Secretary of Homeland Security when he issued the memorandum. After the court’s ruling, the DACA program should have reverted to its original full force. However, USCIS unlawfully maintains some restrictions. For example, new DACA applications are not accepted and validity of a DACA Work Authorization has been reduced to 1 year from the earlier 2-3 years.
The temporary travel restrictions applicable to land ports of entry and ferries service between the United States and both, Canada, and Mexico, block the flow of travelers. In the beginning, the initiative was to control the propagation of COVID-19. Now, the proclamation has been extended to December 2021. Contrary to its minimalist view of the virus, but with the increased rate of COVID-19 infections, it is likely the Administration will block land entry form Mexico and Canada beyond the Christmas/New Year’s holiday.
A proposal was published in the Federal Register yesterday limiting visitors because they happen to be nationals of certain countries. Effective through June 24, 2021, a Pilot Program involving persons who have obtained an inadmissibility waiver will run for six months. It requires a bond from foreign nationals applying for a visitor’s visa (B1,B2 visa) who are from countries with high visa overstay rates.
During that period, consular officers may require nonimmigrant visa applicants falling within the scope of the Pilot Program to post a bond in the amount of $5,000, $10,000, or $15,000 as a condition of visa issuance. The amount of the bond will be determined by the consular officer based on the circumstances of the visa application. Prejudice – Is the individual applicant a victim of pre-judgment?
Elimination of Work Authorization
The U.S. Department of Homeland Security (DHS) also proposed eliminating employment authorization for aliens who have final orders of removal but are temporarily released from custody on an order of supervision with one narrow exception. DHS proposes to continue to allow employment authorization for aliens for whom DHS has determined that their removal is impracticable because all countries from whom travel documents have been requested have affirmatively declined to issue a travel document and who establish economic necessity.
DHS intends for this rule to reduce the incentive for aliens to remain in the United States after receiving a final order of removal, regardless of resulting hardship on U.S. citizen or permanent resident.
U.S. Immigration During Transition
All these new rules generate confusion among the affected parties. How or will these changes be enforced before the new administration of Joe Biden takes effect?
United States is the country with the biggest immigrant population. About 50 million people are immigrants according to the report World Population Policies, published in 2018 for the United Nations Organization. Finding solutions to include immigrants in a legal system should be a priority for our nation.
By Rosa A. Hernandez- Communications Specialist