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.
The greatest beneficiary of President-Elect Joe Biden’s proposed immigration policy could be America’s innovation and start-up economy. The Trump Administration’s most impactful changes to federal immigration policy came via Executive Order – changing the way United States Citizenship and Immigration Services (USCIS) adjudicated nonimmigrant and green card petitions without any legislative action. President-Elect Biden will have the ability to rescind those orders immediately upon taking office, potentially reversing years of damage, as skilled workers and entrepreneurs in high-demand industries looked outside of the U.S. for employment.
Stabilization of the H-1B Visa and OPT Program
The Trump Administration has been pushing, in these last few months, widescale changes to the H-1B program that would move the H-1B Cap process from the current random selection to a wage scale selection process with preference to those earning the highest wages. These latest changes continue to make the process for more difficult and cumbersome, as well as deter small and mid-sized businesses, as well as businesses in rural areas or smaller cities where wages may not necessarily reflect the importance or professionalism of the position from participation in the H-1B Cap process. Just as an example, a school district seeking to hire a teacher under an H-1B would be unlikely to do so under these changes since teacher salaries are not often reflective of the role, function, and importance of our educators.
President-Elect Biden called out the importance of visa programs that support the needs of businesses and innovation, stating, “High skilled temporary visas should not be used to disincentivize recruiting workers already in the U.S. for in-demand occupations. An immigration system that crowds out high-skilled workers in favor of only entry level wages and skills threatens American innovation and competitiveness.” The policy outline prioritizes reform to visa programs that would establish a wage-based allocation process and create systems to ensure visa programs can adjust to the labor market. A return to Obama-era H-1B policies will be welcome news for STEM employers that have had to contend with skyrocketing Request for Evidence filings and denials.
The Trump Administration has also waged an assault on OPT training visas, a valuable recruiting tool for STEM employers providing worksite training for foreign college students and graduates. While President Trump argues foreign college graduates are taking American jobs, studies show there are not enough people – American or foreign – to fill needed positions. The Society for Human Resource Management reported “nearly 60 percent of employers struggle to fill job vacancies within 12 weeks, and careers in STEM are at the heart of the skills gap in America.” If the United States is going to stay at the forefront of innovation and technology, our leaders need to stop playing politics with highly skilled foreign workers. The solution to solving predicted STEM shortfalls is not either/or – it is and. While we broaden and bolster STEM education for American students and workers, we must continue to welcome the best and brightest from overseas. President-Elect Biden has signaled a desire to create immigration policies that can respond to changes in the U.S. Labor market – capping numbers during high unemployment and releasing visas to meet employer demands.
Creation of Start-Up Visa
Business leaders are anxious to see if President-Elect Biden will revisit the Start-Up Visa, passed with bipartisan as part of a 2013 immigration reform package in U.S. Senate. The National Foundation for American Policy suggested in a July report that immigrant entrepreneurs could create the increased investment and jobs to help the U.S. economy recover from the impacts of COVID-19. “A 2016 bill establishing a startup visa in the United States could have created 1 million to 3.2 million jobs over the course of a decade if it became law,” the report states. A startup visa would provide a more flexible alternative to the E-1/E-2 visa, which does not provide a path to citizenship and the EB-5 program, which necessitates a prohibitive initial investment.
Retaining the Best and the Brightest
President-Elect Biden immigration policy would prioritize retention of foreign graduates of U.S. doctoral programs. The outline proposes that foreign graduates of PhD programs should be granted permanent resident status with their degree. “Losing these highly trained workers to foreign economies is a disservice to our own economic competitiveness,” the policy states.
President-Elect Biden’s immigration platform will stand as a stark contrast to the Trump Administration’s “Buy American, Hire American” policies, believing that skilled foreign workers and entrepreneurs can help boost the economy and create jobs, for Americans and international talent alike.
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