President-Elect Joe Biden will inherit an immigration landscape that has changed dramatically in the four years of the Trump Administration. Under its “Buy American, Hire American” directive, the Trump Administration changed the way federal immigration laws are interpreted and enforced, leading to increased scrutiny of every conceivable aspect of legal immigration, from obtaining U.S. citizenship to coming the to the United States as a foreign student. In this series, we will look closely at how different facets of immigration could be impacted under President-Elect Biden’s Administration.
America’s colleges and universities serve as microcosms of the larger world – attracting diverse student bodies and faculties. While higher education institutions are bolstered by the diversity of thoughts and ideas of foreign students and faculty members, what was once seen as standard immigration practices in student visa programs and higher education employment became more difficult under the Trump Administration.
Rebuilding Higher Education Enrollment
Higher education institutions depend on foreign students – as valued members of their campus communities and as important contributors to the financial viability of the institution. For foreign students, American colleges and universities offer prestige and opportunity – not only do international students gain access to a world-class education, but through OPT and CPT programs, foreign students access a foothold with potential employers.
During the Trump Administration, higher education institutions saw foreign student enrollment for bachelor’s degree programs decline – about 10 percent between 2016 and 2019. Foreign students cited concerns over anti-immigrant rhetoric and decreasing job opportunities as reasons as reasons for enrolling in higher education programs outside of the U.S.
Foreign student populations were further impacted by the onset of COVID-19, caught in the crossfire of travel bans and visa restrictions that left many students wondering if they could continue to pursue their dream of studying in the United States.
President-Elect Biden announced an immigration platform that will be decidedly more friendly toward foreign students who hope to study and work in the United States. He will look to reform visa systems to include increasing the cap on employment-based visas and eliminating country-based limits. In his immigration platform, President-Elect Biden signals that highly-skilled foreign workers should be seen as important drivers of U.S. innovation – proposing foreign graduates of U.S. doctoral programs should be given permanent resident status, or a “green card”, upon completion of their program.
President-Elect Biden’s plans would incentivize foreign students to not only earn advanced degrees in the United States but add their sought-after skills to the U.S. labor market. This would be a win for foreign graduates and the U.S. innovation economy.
Allowing Higher Education Employers to Recruit and Retain Foreign Faculty
Employment-based visas for faculty, researchers, and essential staff at higher education institutions were, until the Trump Administration, standard to issue. Most positions in higher education fall outside of the restrictive H-1B Cap, and the highly qualified nature of petitioners far exceeds the requirements of the H-1B visa. But, with all immigration issues, the immigration adjudication in the Trump Administration made it clear there was no such thing as a “standard petition.”
In addition, for many institutions of higher education, faculty and staff can often begin their immigration and higher education “careers” in J-1 status, which often subjects these individuals to a 2-year home residency requirement. During the Trump Administration, waivers of these requirements and/or obtaining O-1 visas that allowed an individual to remain in the US while seeking the waiver became increasingly difficult to obtain and created unreasonable obstacles for institutions seeking to retain highly skilled talent. Likewise, retention plans often involve the “green card” process and, like most immigration issues under the current Administration, these processes became more difficult to navigate and often had inane and baseless barriers. EB-1 adjudications became haphazard and unpredictable. PERM applications were decelerated by the ever-slowing prevailing wage determination process. And priority dates continued to backlog for many applicants, making the overall green card process take an almost insurmountable mountain of time.
Thankfully, most of the Trump Administration’s changes to petition adjudication came via Executive Order, without any legislative action. As such, it will be easier for President-Elect Biden to rescind Executive Orders that lead to increased scrutiny and lengthened processing times. This should have positive impacts on temporary work visas, such as the H-1B visa, as well as employer-sponsored green cards. Higher education employers will be in a better position to attract and retain foreign team members in the coming years. FordMurray offers complimentary consultations for higher education institutions that would like to learn more about hiring international faculty or how to receive SEVP certification for foreign students.