From the day he took office, President Biden began the process of changing the immigration enforcement policies that existed during the Trump Administration. Indeed, the White House has proposed legislation and issued 13 executive orders, presidential proclamations and presidential memoranda related to immigration since Mr. Biden took office on January 20, 2021.
Now, with Secretary of Homeland Security Alejandro Mayorkas recently confirmed, some of the Biden Administration’s immigration enforcement priorities—as carried out by the Department of Homeland Security (DHS)—are coming into sharper focus. [Disclosure: Prior to his confirmation as Secretary of Homeland Security, Mr. Mayorkas was a partner at WilmerHale.] Most of the priorities and initiatives announced so far relate to migration along the southern border, and it is not entirely clear yet how the new administration’s enforcement priorities will affect business and work visas, including H-1B visas for highly skilled workers. Based on the executive orders and initiatives announced to date, it appears that the Biden Administration intends to take a more open approach to immigration with targeted enforcement priorities, which will likely continue to include investigations of work visa and related visa use.
The following executive orders, proposed legislation, and policy announcements provide early insights into some of the Biden Administration’s specific priorities for immigration enforcement.
General Immigration Reform
On President Biden’s first day in office, his administration released a fact sheet for a bill titled the US Citizenship Act of 2021, which proposes significant changes to the nation’s immigration system. On February 18, 2021, Sen. Bob Menendez (Democrat, N.J.) and Rep. Linda Sanchez (Democrat, Calif.) introduced the bill in the Senate and House, respectively. The prospects for the bill’s passage remain unclear given the Democrats’ narrow majority in the Senate.
In addition to creating pathways to citizenship for undocumented individuals, the bill includes additional funding for the development and implementation of technology and infrastructure upgrades to improve security at the border and other ports of entry, more training “to promote agent and officer safety and professionalism,” and additional resources for prosecutions related to human trafficking. The White House has said that the bill will also aim to address the root causes of migration, “including by increasing assistance to El Salvador, Guatemala, and Honduras, conditioned on their ability to reduce the endemic corruption, violence, and poverty that causes people to flee their home countries.”
Among the executive orders issued on President Biden’s first day in office was one titled Revision of Civil Immigration Enforcement Policies and Priorities, which stated that it would “reset the policies and practices for enforcing civil immigration laws.” The executive order further stated that:
The policy of my Administration is to protect national and border security, address the humanitarian challenges at the southern border, and ensure public health and safety. We must also adhere to due process of law as we safeguard the dignity and well-being of all families and communities.
President Biden’s executive order also revoked a Trump-era executive order, which, among other things, increased the categories of undocumented workers prioritized for removal, prohibited so-called Sanctuary Cities from receiving many federal grants, and sought to increase enforcement capabilities through the hiring of 10,000 new Immigration and Customs Enforcement (ICE) officers and increasing collaboration with state and local law enforcement agencies. In revoking the Trump Administration’s Enhancing Public Safety in the Interior of the United States executive order, President Biden directed the heads of various agencies, including DHS, to “review any agency actions developed pursuant to [the Trump Administration’s executive order] and take action, including issuing revised guidance.”
On February 2, 2021, the Biden Administration issued an executive order that directed DHS and other agencies to remove barriers “that impede access to immigration benefits and fair, efficient adjudications of these benefits.” The executive order, titled Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans, further directed those agencies to “identify any agency actions that fail to promote access to the legal immigration system” and “recommend steps, as appropriate and consistent with applicable law, to revise or rescind those agency actions.” In a statement regarding the executive order, Secretary Mayorkas said that the executive order will “help restore trust in our immigration system, re-open and reform our asylum process, secure the southwest border by addressing the root causes of migration, and reunite families separated under the Trump Administration.”
On Inauguration Day, acting Secretary of Homeland Security David Pekoske—the administrator of the Transportation Security Administration (TSA), whom President Biden designated to lead DHS prior to Secretary Mayorkas’s confirmation—issued a memorandum directing the component agencies of DHS to review policies and practices concerning immigration enforcement. The memorandum, titled Review of and Interim Revision to Civil Immigration Enforcement and Removal Policies and Priorities, implemented interim civil enforcement guidelines, which stated that DHS “cannot respond to all immigration violations or remove all persons unlawfully in the United States” due to resource constraints, and that the current enforcement priorities are (1) individuals who pose a threat to national security; (2) individuals who did not attempt to enter or were not located in the United States before November 1, 2020; and (3) individuals who were convicted of an “aggravated felony” as defined by the immigration laws and “pose a threat to public safety.” This represented a break with the Trump Administration, which prioritized the removal of a wider range of individuals. Furthermore, this memorandum aided in operationalizing President Biden’s executive order (Revision of Civil Immigration Enforcement Policies and Priorities) issued the same day, as it rescinded and superseded six prior DHS memoranda issued in the wake of President Trump’s Enhancing Public Safety in the Interior of the United States executive order, including a DHS memorandum issued on February 20, 2017, titled Implementing the President’s Border Security and Interior Immigration Enforcement Policies.
The DHS memorandum also put in place a 100-day “pause” of deportations for many individuals, while excluding, among others, those who pose a national security threat to the United States or those who have “voluntarily agreed to waive any rights to remain in the United States.” The state of Texas sued DHS in the US District Court for the Southern District of Texas to block the pause of deportations. On January 26, 2021, Judge Drew B. Tipton issued a nationwide, two-week restraining order enjoining the Biden Administration from starting the 100-day pause of deportations after concluding it (1) violated a federal law requiring removal 90 days after a deportation order and (2) arbitrarily and capriciously departed from previous policy without sufficient explanation. On February 8, 2021, Judge Tipton extended the temporary restraining order for another two weeks until February 23, 2021.
Southern Border Issues
Also on his first day in office, President Biden issued a presidential proclamation to stop construction of the southern border wall, a cornerstone of the Trump Administration’s immigration enforcement policy. The proclamation, titled Termination of Emergency With Respect to the Southern Border of the United States and Redirection of Funds Diverted to Border Wall Construction, stated that President Biden concluded that former President Trump’s declaration of a national emergency, which freed up funds for construction of the border wall, was “unwarranted.” During a Senate confirmation hearing on January 19, 2021, Secretary Mayorkas said that he did not yet know what would be done with the portion of the wall that had already been constructed. He said that he would study the issue of security along the southern border generally, and suggested he favored a diverse approach that may include a combination of physical barriers, additional security personnel, enhanced technology, and the “use of air and marine assets.”
On February 11, 2021, DHS announced that on February 19, 2021, it will begin the process of ending a Trump Administration policy that required individuals seeking admission to the United States from Mexico, including asylum seekers, to “remain in Mexico” under what is known as Migrant Protection Protocols (MPP). According to DHS, about 25,000 individuals who are under MPP have active immigration cases in the United States. DHS said that it would soon announce a virtual registration process for those individuals, and it will instruct them as to where and when to present themselves to US authorities.
Visa Issues Related to High-Tech Workers
Proposed Legislation and Executive Orders
The US Citizenship Act of 2021 includes aspects related to business and work visas relevant to high-tech workers. In particular, the bill provides work authorization to the dependents of H-1B visa holders and would create a pilot program that “incentivizes higher wages for non-immigrant, high-skilled visas to prevent unfair competition with American workers.” The pilot program suggests the Biden Administration may be open, at least in concept, to two late-term Trump Administration rule changes that would increase the wages that must be paid to H-1B visa holders and allocate H-1B visas through a system that would give preference to applications associated with higher-paying positions. Nevertheless, the Biden Administration has directed that the implementation of new regulations that were published in the Federal Register but had not taken effect when President Biden assumed office on January 20 (e.g., the two aforementioned H-1B visa rule changes) be delayed until March 21, 2021. The Biden Administration further delayed until December 31, 2021 the implementation of the rule that would give preference to applications associated with higher-paying positions. The administration imposed the additional delay to give it more time to prepare for the change, though it did not specifically rule out the possibility that it would alter the rule. The Biden Administration also delayed until May 14, 2021, the implementation of the new rule regarding increased wages for H-1B visa holders, so that it has further time to review the implications of the new rule. A third proposed rule by the Trump Administration involving H-1B visas was withdrawn by the Biden Administration for further review. The Biden Administration has said that it would withdraw new regulations that were not published in the Federal Register by January 20, 2021, and the proposed rule, which was announced on January 15, 2021, was not published by, or since, that date. The rule would have impacted a common arrangement in the information-technology (IT) sector in which an H-1B visa holder employed by one company is assigned to work on-site at a client company of his/her employer. In particular, this proposed rule would have required the client company to file visa petitions for any H-1B visa holders on-site (the H-1B visa holders’ employers would also have needed to continue filing visa petitions for their employees).
On January 25, 2021, five days after his inauguration, President Biden issued another executive order revoking a Trump-era executive order. Among other things, the Biden Administration’s executive order, titled Ensuring the Future Is Made in All of America by All of America’s Workers, revoked the Trump Administration’s executive order of April 18, 2017, titled Buy American and Hire American. President Trump’s executive order had directed DHS and other agencies to propose reforms to the H-1B visa program “to help ensure that H-1B visas are awarded to the most-skilled or highest-paid” applicants. The Trump Administration subsequently promulgated the two rule changes to the H-1B visa program described above. President Biden’s executive order of January 25, 2021 did not include any specific objections to that portion of President Trump’s executive order or provide any insight into President Biden’s plans on that issue, as it did not mention the H-1B visa program.
Business and Work Visa Enforcement
Although the Biden Administration’s enforcement priorities related to the use of business and work visas (i.e., B, H and L visas) remain unclear, it is worth noting that such enforcement actions have remained reasonably consistent since at least the Obama Administration. The largest settlement in an investigation of this type occurred in 2013. It involved a $34 million civil settlement related to I-9 documentation issues and the use of B-1 and H-1B visas by Infosys, an IT services and consulting company (Infosys did not admit liability or wrongdoing). Investigations and settlements continued during President Trump’s term, including a $2.5 million criminal and civil settlement in 2019 with data analytics company MuSigma related to its use of B-1 and H-1B visas (MuSigma did not admit liability or wrongdoing) and a $1 million civil settlement in 2017 with IT and consulting firm Globant LLC related to its use of B-1 visas (Globant LLC did not admit liability or wrongdoing).
We expect the investigations and enforcement actions in this area to continue irrespective of particular Biden Administration priorities based on the following:
- These investigations have tended to emanate independently from the US Attorney’s Offices rather than from coordinated efforts out of the central Department of Justice (DOJ).
- There are long-standing DHS, ICE, and Department of State investigative resources that often initiate and pursue these investigations.
- The relevant agencies have established units charged with investigating and addressing visa fraud and related matters (e.g., DHS’s Homeland Security Investigations, the Office of Investigations of the State Department Office of the Inspector General, and the Immigrant and Employee Rights Section in DOJ’s Civil Rights Division).
- Issues related to visa use present a fertile area for visa holders or other company employees to file whistleblower qui tam complaints under the False Claims Act. Those complaints often serve as the catalyst for government investigations, as they must be filed under seal and served on the DOJ, which allows the government to seek more information through a Civil Investigative Demand and to decide whether to fully investigate and ultimately intervene in a case.
- Other civil cases, including those in which employees allege they were discriminated against by virtue of their employer favoring visa holders for work assignments, can also raise the government’s interest in potential misuse of business and work visas.
For all of these reasons, it is important that employers that regularly obtain work visas to bring employees into the United States maintain a robust and effective immigration and mobility system and related compliance program.