In 2021, President-elect Joe Biden will have to deal with many restrictive immigration policies put in place by the Trump administration. Attorneys expect that, at least, a few of these regulations could be overturned. The presidential proclamations that used the pandemic as an excuse to ban visa issuance for H-1B program have already been set aside.
Last week, the federal judge in San Francisco said the Covid-19 pandemic cannot justify visa restrictions for the H-1B program, which benefits U.S. tech companies. According to judge Jeffrey White, “a large number of job vacancies remain in the areas most affected by Rules: computer operations which require high-skilled workers.”
Constraints on H-1B visas were introduced in the midst of the coronavirus pandemic. Two rules announced in October required companies to pay higher wages to foreign employees and introduced limits on specialty occupations.
Will U.S. be a nation of immigrants again?
Over the last several years, the combined disruption of Trump’s executive orders and Covid-19, which shut down U.S. consulates globally, managed to curtail business-related immigration without changing immigration law itself, said Jordana Hart, attorney from Gonzalez & Hart, an immigration law practice in Miami. “It will take time to undo so much of the damage, which has also affected the U.S.’s reputation for openness and welcome.”
According to attorneys, the change of political tone has already made a difference at the local branches of U.S. Citizenship and Immigration Services (USCIS) and in immigration court. “I had a USCIS in Utah calling my client to come back for her swear-in a day after the exam took place so the client could become a U.S. citizen immediately, as she needed to leave the country,” said Margo Chernysheva of MC Law Group in Las Vegas. “This would not have happened a year or two ago.”
J.J. Despain, managing attorney at Wilner & O’Reilly, said he expects attitudes to change at U.S.consulates and embassies. “Every officer screening foreign applicants has his or her own style, and that style can magnify depending on the guidance coming from above,” Despain said.
Visa processing times, however, will most likely remain the same: part of the slowdown is due to a lack of funds, since USCIS is fee-driven, said Jordana Hart. By 2021 legal immigration to the U.S. is projected to drop by 49%, which means a corresponding drop in the fees that keep USCIS going. “The wounding of U.S. immigration by a thousand cuts under Trump led to the decrease in filings,” Hart added.
Options for foreign entrepreneurs and investors would remain limited, especially for those seeking to start a business, believes Joshua Goldstein of Goldstein Immigration Lawyers in Los Angeles. “America needs to modernize its immigration system,” Goldstein said. “But passing new legislation will seem politically impossible, as the Republicans hold political power and remain adamantly opposed.”
Right now, according to Chernysheva, the only visa that is still valid for entrepreneurs is an investor treatment E-2 visa, but it is not available for every country and does not provide permanent residential status. But international business founders come from a variety of backgrounds, and many of them are former international students.
There should be an immigration path open for them, too, Goldstein believes. “Look around Menlo Park, Kendall Square, or Silicon Beach in Los Angeles and it’s obvious that many of these amazing companies came about through the talents of foreign nationals,” Goldstein said.
Enacting a program for Startup Visas, similar to the ones in Canada, the UK, Australia, and New Zealand, would allow visas for foreign entrepreneurs who raised capital from qualified U.S. investors. The Startup Visa Act was introduced in the U.S. Senate in 2013, but was never passed.
“I think the new administration recognizes that having a ’startup visa is critical to revitalizing our economy and will do everything in their power to ensure there are pathways for this talent to come to the U.S.,” said Jason Finkelman, immigration attorney at Finkelman Law.
The Biden administration plans to expand immigration options for entrepreneurs who can contribute to the U.S. economy, but lawyers don’t expect a lot of actual laws to change. These laws and rules come from Congress, so they are much harder to adjust, believes J.J. Despain, of Wilner & O’Reilly.
“Also, for the E-1 and E-2 visas, the countries whose citizens get to apply for them are determined by treaties between those countries and the U.S.,” Despain said. New countries could be added to the list, but this will depend on American foreign policy.
By the end of 2022, attorneys expect, some type of comprehensive immigration reform will begin to take shape. However, if the U.S. Senate remains under Republican control, the Biden administration will not be able to change regulations, just as prior administrations were stymied by congressional opposition, said Jordana Hart. “Changes to the visa programs for investors and entrepreneurs will only come if Biden has the fortitude to make use of his executive order powers,” she added.