The Biden administration continues to balance the U.S. labor market with the growing concerns of businesses who require foreign nationals in the U.S. to work, and foreign nationals abroad to enter the U.S. with work visas. Between fixing, adjusting, and changing prior policies, however, the backlog in immigration case processing continues to grow and the visa issues at the U.S. Consulate are almost at a standstill.
The U.S. cannot be opened to global business if it is crippled by this backlog. Biden’s policies are clearly more business-friendly than those of the Trump administration, but these delays have created many uncertainties for businesses that cannot properly plan their recruitment and staffing.
It is currently unpredictable when visa processing at the consulates will resume to somewhat normal levels or when an employee will receive employment authorization and other immigration benefits. The Biden administration has made efforts to remove barriers, but the delays in processing cases continue in all areas, causing great uncertainty for all foreign nationals and businesses.
Steps Already Taken by the Biden Administration
It’s not that the Biden administration is anti-immigration or anti-business immigration. In fact, President Biden has made it known that he would strike a completely different tone than the prior administration. From the start, Biden issued an executive order on immigration.
This is a predicable Democratic position that encompasses more than business but shows and states that, “President Biden believes that immigrants are essential to who we are as a nation and critical to our aspirations for the future.” The order requires agencies to conduct a top-to-bottom review of recent regulations, policies, and guidance that have set up barriers to our legal immigration system. In the spirit of this initiative, almost all of Trump’s orders and policies have been reversed.
The Biden administration also revoked the ban on the issuance of employment and family-based immigrant visas at U.S. Consulates. On paper, this is a positive step forward, but the U.S. Consulates still have a tremendous backlog and lack sufficient personnel and funds, which means that clearing the backlog is going to be easier said than done.
The non-immigrant visa ban that was imposed under Trump extensively limiting the issuance of H-1B, L-1, J-1, and H-2B visas was allowed to expire. This ban prevented many executives and highly skilled workers from being able to enter the U.S.
Backlog of Over 2.6 Million Cases
Despite the initiatives to undo these bans, the Department of State, which is responsible for the issuance of visas, has a backlog of over 2.6 million cases. Of these, nearly a half-million cases are documentarily qualified but cannot seem to get through the system. Interviews for qualifying applicants are continuously canceled, and there is no consistency or predictability in how future appointments will be handled.
The Biden administration also brought back a longstanding policy of the U.S. Citizenship and Immigration Services, which had been rescinded under Trump, to give deference to prior approvals when adjudicating extensions of stay involving the same parties and position.
This return to deference was a positive step for many visa classifications, such as the H-1B, which is the most common professional work visa. This eliminates the needless delays of issuing requests for evidence allowing USCIS to focus their resources more efficiently.
Many other former draconian memos and proposed policies were eliminated, such as allowing denials to be issued without a request for evidence, and adding a new H-1B lottery selection criteria favoring companies who paid the highest wages for foreign nationals.
The Biden administration had announced its objective to expand and implement immigration policies and regulations to attract investors and create business opportunities for foreigners. Among the initiatives discussed, include increasing the H-1B cap visa numbers, the International Entrepreneurial Parole Program, establishing pathways to citizenship, and expanding dual intent for F-1 students, to name just a few.
State Department Needs Meaningful Changes
All these positive steps for Biden’s business polices, as noted earlier, are for naught if business cannot be mobile due to the crushing backlogs. The Covid-19 travel ban restrictions still exist, with the constant changing eligibility criteria for national interest exceptions. Depending on the spread of Covid-19 variants, these restrictions (or versions of them) may continue until the first quarter of 2022.
Although the State Department has made some steps into organizing the backlog, it has divided the immigrant visa categories into four tiers of priority, and reorganized which non-immigrant visas will take priority, such as foreign diplomats, mission critical categories and so forth. There is no real meaningful change.
The State Department has not suggested how many more resources they will need to clean up the backlog. They also have not implemented a tech-based system, for example, virtual meetings to handle some of the low-risk visa holders, those visa holders who are renewals, ones that have had registered E-companies for many years, or other low-risk factors that would warrant expedited service.
In order for these new changes in the Biden administration to take hold, foreign nationals and businesses have to be able to recruit and physically move personnel. Without a more tangible policy as to how this is to be accomplished, growth and business will remain with their hands tied to increase revenues and establish proper recruitment forecasting. Families will not be reunited, and the U.S. will be slow to build back the growth it so desperately needs.
This column does not necessarily reflect the opinion of The Bureau of National Affairs,Inc. or its owners.
About the Authors
Marcela Bermudez is partner in Greenspoon Marder’s Immigration and Naturalization practice group in New York. She represents multinational companies and individual clients in employment-based immigration, non-immigrant matters, I-9 issues, and family-based benefits.
Patricia L. Gannon is a partner in Greenspoon Marder’s Immigration and Naturalization practice group in New York and serves on the firm’s management committee. She advises multi-nationals on employment verification matters, develops compliance strategies and programs, and is a member of the Foreign American Counsel.