February 25

How Will The Biden Immigration Bill Impact Business Immigration?

Immigration attorney Jon Velie answers how the Biden Immigration Bill, the U.S. Citizenship Act of 2021, will impact business immigration.

Rep. Linda T. Sanchez (D-California ) and Sen. Robert Menendez (D-N.J.), the Biden Immigration Bill’s chief sponsors, sponsored the U.S. Citizenship Act of 2021 filed February 8, 2018. It is the first comprehensive immigration bill attempted since the Senate alone sponsored an immigration reform bill in 2013.

It was a bi-partisan effort with 4 Senators from both parties, called the Gang of 8. It included Senator Menendez. It did not have any sponsors in the House however.  Biden’s immigration bill has sponsors in both chambers of Congress, but it does not have any Republicans.

Democrats hold a majority in the House of Representatives, but the Senate is split 50-50, with Vice President Kamala Harris as the tie-breaking vote. That means Democrats would need to win over 10 Senate Republicans to avoid a “filibuster,” a procedural hurdle that can delay or block legislation from coming to a vote.

Those familiar with the Biden Immigration Bill believe that is a massive challenge with many saying it is Dead on Arrival. 

So why are the Democrats doing it if it is sure to lose, especially as one of Biden’s first major pieces of legislations. The answer is a few things. This proposed legislation does a number of things.

  1. It is pro immigrant. Immigrant populations were abused under the Trump Administration. Immigrants were key to Biden winning the Presidency delivering Arizona and Nevada, both traditional Republican states.
  2. It is strong. It says enough of illegal aliens. Anyone in the U.S. on the day Biden was elected will have a pathway to citizenship. And no more use of the word alien.
  3. It supports American worker protections through wage protections.
  4. If it does not pass it is not over. It forces Republicans to openly oppose immigrant communities. Many of the items can be negotiated through smaller more focused bills. Biden can use Presidential Proclamations to achieve some of the things he wants to.
  5. This is the best time to go for this. The Democrats have the House, Senate and Presidency and the Republicans are divided after giving Trump a reprieve on his involvement in the Insurrection. So  here we go. 

The 353-page bill is very aggressive and its highlights are to:

  • Establish an 8-year path to citizenship for undocumented immigrants who arrived in the U.S. by Jan. 1
  • Provide an expedited path to citizenship for farm workers and undocumented young people who arrived in the U.S. as children with temporary protected status under DACA
  • Replace the word “alien” with “non-citizen” in law
  • Raise the per-country caps on family and employment-based legal immigration numbers;
  • Repeal the penalty that prohibits undocumented immigrants who leave the country from returning to the U.S. for between three and 10 years

Key Points from the Biden Immigration Bill for Business

But at Voice of Immigration we focus on Business Immigration. Here are some of the sections of the Biden Immigration Bill that impact our corner of this area of the law. Not all are positive for Business Immigration practitioners and the companies we represent: 

SEC. 3407. WAGE-BASED CONSIDERATION OF TEMPORARY WORKERS. Authorizes when determining the order in which visas should be distributed among qualified H-1B workers (and any other nonimmigrant worker categories to whom the Secretary deems it appropriate to apply this section), to prioritize based on the wages offered by their employers.

SEC. 3405. FLEXIBLE ADJUSTMENTS TO EMPLOYMENT-BASED IMMIGRANT PROGRAM. temporarily reduces admissions of employment-based 2nd- and 3rd-preference immigrants (professionals with advance degrees, those with ³exceptional ability,´ skilled and professional workers without advance degrees, and ³other workers´) during times of high unemployment in particular geographic areas or labor market sectors

Here is one that is good for students

SEC. 3408. CLARIFYING DUAL INTENT FOR POSTSECONDARY STUDENTS. Sec. 3408(a). Exempts full-time F-1 students of a foreign residence that the student has no intention of abandoning.

Here is one that is good for green card applicants from India, China and other countries with delays because of priority dates:

Sec. 3401(a). In General, adds noncitizens with doctoral degrees in the STEM fields from accredited United States institutions of higher education to the list of immigrants who are not subject to numerical limits for green cards.

Here is another one:

SEC. 3402. ADDRESSING VISA BACKLOGS. Sec. 3402(a). Eliminates numerical limitations on immigrants, including derivative beneficiaries, whose visa petitions have been approved and whose waits have exceeded ten years.

Here is another that we don’t know how it will play out:

Sec. 3403(a). Eliminates the per-country caps for employment-based immigrants.

One of the complaints about this type of solution is that it will equally spread the backlog across all countries so everyone will have to wait. These could be alleviated if they simply raised or eliminated the number of green cards could be issued and to use a traditionally Republican phrase, let the market determine the demand. It does not state eliminated numerical limitations for everyone only those in line for over ten years. 

Sec. 3406(a). – Pilot Program for Regional Economic Development Visas. Authorizes admission of up to 10,000 additional admissible immigrants per year whose employment is essential to the economic development strategies of their local communities. 

This is cool as an immigration attorney, as I am thinking of how we can prove essentiality of economic development strategies for local communities.

With the Labor Cert requirement for this visa under the following section 3406 b this seems to be intended to be a lesser significant version of the EB-2 National Interest Waiver. The NIW has been a great tool for Entrepreneurs who create jobs as their advancement of the National Interest under the Matter of Dhanasaur.

Since this requires a labor cert can we infer it is a lower standard than the NIW. If so, what would that be? Positions that come to mind would be employees of state, tribal and local government economic development or business entities. Companies that have partnerships with state, local or tribally owned entities.

Companies that locate in government designated zones. Look to community planning documents. Once it has established that the jobs stem from economic strategies of local communities’ step two would be to prove they are essential. This could mean executive or managerial positions or those that impact the completion or success of a project. 

This will be a great boon for communities to leverage the skills of foreign nationals to grow, job creation and entrepreneurism. I am a big fan of this one. 

SEC. 3409. H-4 VISA REFORM. Sec. 3409(a). – Work Authorization for H-4 Visa Holders. Sec. 3409(b). – Protecting H4 Children who Age out of Status.

This is great, an extension from just H-1Bs whose I-140s have been approved. This is a necessary thing on two fronts. First people want and need to work.  Many spouses of H-1Bs are in prime earning stages of their lives and unless they can get their own H-1B or other visa, have to sit at home or work illegally. 2, Most places in America require two incomes. 

SEC. 3410. EXTENSIONS RELATED TO PENDING PETITIONS.²Authorizes extensions of nonimmigrant stays for individuals previously granted nonimmigrant visas under subparagraphs (F) (students), H-1B (temporary professional workers), L (intracompany transferees), or O (noncitizens of ³extraordinary ability´) of section 101(a)15) of the Immigration and Nationality Act if their visa petitions or labor certification applications have been pending more than one year. Provides that these extensions will be in one-year increments. Prescribes employment authorization when such extensions are granted.

This is an improvement on the previous process of permitting extensions of their non-immigrant visas. This meant some were stuck in their jobs for more than a decade. Employment Authorization would permit movement to other positions or taking on additional positions or opening companies without incurring unauthorized working status.

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