For the seventh consecutive year, we should not expect Donald Trump to visit the Statue of Liberty and celebrate America’s tradition as a nation of immigrants. But what will Joe Biden, his administration and the Republican majority in the House do on H-1B visas and immigration in 2023?
Republicans Take The House
Starting in January 2023, Republicans become the majority in the House of Representatives. The policy differences between a Democratic-led Senate and the Republican-led House will make passing immigration legislation less likely.
Rep. Jerry Nadler (D-NY) and Rep. Zoe Lofgren (D-CA), the most recent chairs of the House Judiciary Committee and immigration subcommittee, have been pro-immigration on business immigration, family immigrants, refugees, asylum and other issues. A national anti-immigration organization gave their replacements, Rep. Jim Jordan (R-OH) and expected subcommittee chair Rep. Tom McClintock (R-CA), the highest grades possible on an “immigration reduction report card” in 2022.
Employers and universities should not expect a welcome reception on immigration in the House. Republican witnesses at immigration hearings during the past two years favored a hardline stance on illegal immigration but also included a left-wing critic of business immigration and international student policy. Many House hearings will likely focus on the border and may include field hearings. Republicans have promised to investigate and possibly impeach Homeland Security Secretary Alejandro Mayorkas.
Sen. Richard Durbin (D-IL) and Sen. Alex Padilla (D-CA) are expected to return as Senate Judiciary Committee chair and immigration subcommittee chair. Sen. Chuck Grassley (R-IA) is expected to no longer be ranking member on Senate Judiciary. Sen. Lindsey Graham (R-SC) likely will be the ranking member.
In 2022, Sen. Grassley blocked an exemption from annual green card limits for foreign nationals with a Ph.D. in STEM fields and those with a master’s degree “in a critical industry,” such as semiconductors. Since the provisions had passed the House of Representatives, Grassley’s actions frustrated employers and universities and, according to analysts, were likely welcomed by U.S. economic competitors. The Chinese government opposes Chinese-born scientists and engineers staying in America, and has a program to lure them back to China after studying abroad. Grassley also opposed the Afghan Adjustment Act to help Afghans, including parolees. Sen. Graham should be more supportive of those measures, although it is unclear if he will get the opportunity, given Republican sentiment on immigration in the House.
H-1B Visas, Immigration Fees and Employment-Based Green Cards
Higher fees and significant business immigration regulations are on the Biden administration’s agenda in 2023. “After the fee rule, DHS will prioritize proposed regulations on adjustment of status procedures and H-1B ‘modernization,’” according to Berry Appleman & Leiden. “A proposed wage regulation remains on the Department of Labor’s regulatory agenda, but the agency has not yet submitted a proposed rule for review and the timing is not yet clear.”
In computer-related occupations, the median salary for H-1B visa holders was $111,000 in FY 2021. The average salary for H-1B professionals in computer-related occupations in FY 2021 was $118,000, according to USCIS. A company may spend up to $31,000 to file an initial H-1B petition (for three years) and an extension for an additional three years, based on an NFAP analysis of government fees and attorney costs.
The summary of the adjustment of status regulation, which does not list a publication timetable, reads: “DHS proposes to amend its regulations in order to improve the efficiency in the processing of the Application to Register Permanent Residence or Adjust Status (Form I-485), reduce processing times, improve the quality of inventory data provided to partner agencies, reduce the potential for visa retrogression, and promote the efficient use of immediately available immigrant visas to include the expansion of concurrent filing to the employment-based 4th preference (certain special immigrants) category, including religious workers.”
The summary of the H-1B modernization regulation reads: “The Department of Homeland Security (DHS) is proposing to amend its regulations governing H-1B specialty occupation workers and F-1 students who are the beneficiaries of timely filed H-1B cap-subject petitions. Specifically, DHS proposes to revise the regulations relating to ‘employer-employee relationship’ and provide flexibility for start-up entrepreneurs; implement new requirements and guidelines for site visits including in connection with petitions filed by H-1B dependent employers whose basic business information cannot be validated through commercially available data; provide flexibility on the employment start date listed on the petition (in limited circumstances); address ‘cap-gap’ issues; bolster the H-1B registration process to reduce the possibility of misuse and fraud in the H-1B registration system; and clarify the requirement that an amended or new petition be filed where there are material changes, including by streamlining notification requirements relating to certain worksite changes, among other provisions.”
A National Foundation for American Policy (NFAP) report concluded, “In formulating a new H-1B regulation, U.S. Citizenship and Immigration Services (USCIS) should avoid the Trump administration’s approach of narrowing what qualifies as a specialty occupation” and the agency should not redefine what constitutes an employer-employee relationship.
“Congress designated the U.S. Department of Labor (DOL), not USCIS, to investigate and oversee the labor market protections for the H-1B visa category. By attempting to take on the duties of another agency, USCIS has engaged in questionable policy pursuits and expended vital resources,” according to former USCIS Director Leon Rodriguez, former USCIS Chief Counsel Lynden Melmed, and former Associate Counsel for the USCIS Vermont Service Center Steve Plastrik. The three wrote that USCIS does not need to enact new H-1B restrictions via memos or regulations since Congress has already imposed significant restrictions, including wage requirements and a low numerical limit.
The H-1B numerical limit is so low that in April 2022, the annual limit of, in effect, 85,000 new H-1B petitions for employers—about 0.05% of the U.S. labor force—led to USCIS rejecting about 400,000 (80% of) applicants. Even with layoffs at high-profile technology firms, one should expect H-1B registrations to exceed the 85,000-limit for FY 2024. The significant demand for technical labor across sectors of the U.S. economy should outstrip the annual limit. (“Most laid off tech workers are finding jobs shortly after beginning their search,” according to a survey cited by the Wall Street Journal.)
Employer fees will likely increase significantly under a new USCIS proposal. That will not be welcomed by those paying the fees. On the other hand, employers and individuals would like to see USCIS have sufficient resources to do its job. In December 2022, USCIS stated in a report that it reduced its backlog of cases but that more funding from Congress is needed. Berry Appleman & Leiden notes USCIS “cites the new fee rule as part of its plans to prevent the accumulation of new backlogs.”
Although the State Department has made progress, employers expect delays in obtaining visas to continue in some places, such as India. Visitor visas will likely remain particularly problematic.
DACA: Good News Not Expected
“The worst case, which unfortunately is a very realistic possibility, is that the courts will invalidate the Deferred Action for Childhood Arrivals (DACA) program,” said Andrew Pincus, an attorney with Mayer Brown, in a September 2022 interview. “That means that more than 600,000 people will lose the ability to work, to drive a car, to participate in society, and also that they will face the possibility of being deported to countries they have never known because they came here as children.” A DACA case is currently at the Fifth Circuit.
Passing legislation to protect DACA recipients in a Republican-controlled House will be challenging. “[Rep. Kevin] McCarthy is taking a very hard line on immigration policy,” reported Punchbowl News. “The California Republican is opposed to trading a pathway to citizenship or DACA for increased border security. This is the traditional trade both parties have envisioned for years.” Sen. Kyrsten Sinema (I-AZ) and Sen. Thom Tillis (R-NC) failed to gain enough Republican support for a compromise proposal on Dreamers at the end of 2022.
The Biden administration resettled fewer than 26,000 refugees in FY 2022, nearly 100,000 below the 125,000-refugee ceiling it established. The refugee ceiling is the same for FY 2023, but to meet that level, “President Biden must make the resettlement program a priority, investing resources and political will in creative solutions to expedite processing,” according to the National Immigration Forum’s Danilo Zak.
Americans have stepped forward and offered their time as volunteers and money as sponsors to help those fleeing war and persecution in Afghanistan, Ukraine and elsewhere. The Biden administration has implemented the successful Uniting for Ukraine initiative that has allowed over 90,000 Ukrainians to be paroled into the United States with the help of U.S. financial sponsors, according to Michelle Hackman at the Wall Street Journal, with another 34,000 approved for travel. A more limited program was established for Venezuelans.
The Biden administration has not made the case that America is dealing with a historic refugee crisis in the Western Hemisphere to counteract the narrative that the United States has simply failed to enact sufficiently harsh immigration policies. Border Patrol encounters in FY 2021 and FY 2022 were the highest on record but not wholly comparable to previous fiscal years that only counted apprehensions and did not have Title 42 restrictions in place.
Still, individuals and families from Venezuela, Nicaragua, Cuba and others have come to the United States in large numbers seeking asylum or employment. To the extent the Biden administration can funnel people into lawful paths to apply for work or asylum, Border Patrol encounters will diminish. More creative solutions may be needed to address the situation, including expanding the avenues to work and supplying refugee circuit rides in the region.
Supreme Court Cases
Judges will have a say on U.S. immigration policy in 2023. In 2022, the Supreme Court heard oral arguments in United States v. Texas, a lawsuit by Texas and Louisiana that argues the Biden administration’s enforcement guidelines, as outlined in a memo, are unlawful. George Mason University law professor Ilya Somin expects the Biden administration to prevail. “But it’s not entirely clear whether it will do so on standing or on the merits,” according to Somin.
The Supreme Court will also decide the fate of Title 42 and a lawsuit by several Republican-led states. “In its order, the court . . . agreed to take up the states’ appeal this term,” reported CNN. “The court said it would hear arguments on the case during its argument session that begins in February 2023.”
Two Years to Enact Positive Immigration Reforms
The Biden administration can use the next two years to enact reforms to improve the U.S. economy and the immigration system. One such reform, recommended by University of North Florida economist Madeline Zavodny in an NFAP study, would allow all spouses of H-1B visa holders to work, not only those whose H-1B spouse is in the queue or in the process for permanent residence. “The United States can reap significant economic benefits, ease labor shortages, and attract more workers in the global competition for talent if it expanded current rules on work eligibility for the spouses of H-1B visa holders,” writes Zavodny.
The Trump administration failed to lock in many of its anti-immigration policies via regulation. The Biden administration has two years to publish regulations or enact new policies that would benefit immigrants, international students and the competitiveness of the U.S. economy.