Introduction to the immigration framework
i Legislation and policy
US immigration policy has multiple goals. First, it reunites families by admitting immigrants whose relatives are already in the United States.2 Second, it admits foreign workers to perform labour, generally taking into consideration the availability and working conditions of US workers.3 Third, it provides a refuge for those facing persecution on account of their race, religion, nationality, membership of a particular social group or political opinion.4 Finally, it promotes diversity in the immigrant pool by randomly providing visas to immigrants from countries with low rates of immigration to the United States.5
This policy provides two pathways for admission to the United States: aliens may be admitted as immigrants on a permanent basis or as non-immigrants for a temporary period.6 Immigrants are called lawful permanent residents (LPRs) and have an immigrant visa often referred to as a green card. LPRs have full civil rights to work in the United States. Over 1 million new immigrants are admitted to the United States each year.7 Non-immigrants are admitted for a particular activity and for a finite period. Certain non-immigrants may work in the United States depending on their visa classification. In recent years, approximately 186 million non-immigrants have been admitted to the United States.8
ii The immigration authorities
US immigration laws can be found in the Immigration and Nationality Act (INA), as amended.9 The INA brought together all the nation’s statutes on immigration and naturalisation, and it remains the basic body of immigration law. The INA included a national origins quota system of immigrant selection, quota-free restrictions for the western hemisphere, quota preferences for relatives and skilled persons, and security protections against criminals and subversives.
Since 1952, the INA has been amended countless times by legislation, although its structure has remained intact. Significant amendments are outlined below.
In 1965, the INA of that year abolished the national origins system and set annual limits on immigration and a per-country quota.10 By equalising immigration policies, the effect was to shift immigration from Europe to Asia and to South and Central America.
In 1986, the INA was amended again by the Immigration Reform and Control Act.11 To curtail the rising tide of illegal immigration, the law imposed civil and criminal penalties on employers who knowingly hired aliens not authorised to work and required employers to verify the identity and work eligibility of all employees through the completion of Employment Eligibility Verification Form I-9 at the time of hiring.
In the same year, the Immigration Marriage Fraud Amendments Act was passed to prevent marriages intended solely to gain immigration benefits.12 It established a two-year period of ‘conditional residence’ for foreign nationals who marry a US citizen, at the end of which the US citizen spouse must petition the government to remove the conditional status.
The Immigration Act of 199013 substantially changed the preference system for immigrants by establishing new categories with separate caps for employment-based immigration and family-sponsored immigrants. It removed quotas for immediate relatives and established a diversity programme for immigrants from countries with low rates of immigration. It also created a cap on H-1B and H-2B non-immigrant workers and required employers to file a labour condition application (LCA) with the US Department of Labour (DOL) regarding wages and other working conditions for H-1B workers. The law also created new non-immigrant visa categories: the O visa for persons of extraordinary ability and the P visa for certain types of entertainers.
In 1996, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA)14 was passed, which expanded the categories of offences for which aliens could be deported, eliminated certain waivers of deportation and established a new bar to admission, of three or 10 years, for aliens who had been unlawfully present in the United States for six months or one year, respectively.
In addition to federal immigration law, the United States has witnessed the proliferation of state and local immigration laws.15 These have emerged because of the perceived failure of the federal government to control the migration of undocumented persons to the United States or the removal of persons unlawfully in the United States. However, under the Commerce Clause of the US Constitution,16 the regulation and enforcement of immigration matters fall within the purview of the federal government, and federal courts have historically struck down state and local attempts to regulate immigration with some limited exceptions.17 For example, the Supreme Court upheld an Arizona provision that requires state law enforcement officials to determine the immigration status of anyone they stop or arrest if they have reason to suspect that the individual might be in the country illegally, but struck down all other provisions on the grounds that they were pre-empted by federal law.18
Several US agencies implement and enforce immigration law.
Through its Bureau of Consular Affairs, the US Department of State (DOS) processes immigrant and non-immigrant visa applications.19
In 2003, the Department of Homeland Security was created with separate branches to administer immigration laws:20
- US Citizenship and Immigration Services (USCIS) is the agency responsible for the processing of all immigrant and non-immigrant visa petitions and applications by aliens who are already in the United States;
- US Customs and Border Protection (USCBP) operates at the nation’s borders, airports and seaports and is responsible for determining the admissibility of arriving aliens and for determining their length of stay; and
- US Immigration and Customs and Enforcement has authority to detain and remove illegal aliens and enforces the Immigration Reform and Control Act.
The DOL’s Employment and Training Administration21 processes permanent employment labour certification applications (PERMs) filed by employers seeking to employ foreign workers permanently in the United States. It also processes labour condition applications filed by employers wishing to employ H-1B workers.
Finally, the US Department of Health and Human Services22 determines the admissibility of aliens on health grounds.
The year in review
The year 2021 was one of significant changes, as the Biden administration replaced the Trump administration, and covid-19 restrictions eased as a result of the widespread global vaccination effort. The Biden administration rolled back several Trump era policies, but many of the backlogs across all case types continue to persist. As of mid-2020, global migration reduced by approximately 27 per cent, as a result of covid-19.36
i Impact of covid-19
The covid-19 pandemic continues to affect migration, entry and exit policies worldwide, and immigrant and non-immigrant visa processing within the United States.
Travel and consular processing
As of 28 December 2021, the US currently has no ongoing country-specific travel bans, after lifting the Omicron-related travel restrictions imposed on 26 November 2021 as a result of the Omicron covid-19 variant that affected South Africa and other African countries.37 Starting from 6 December 2021, the US has required a negative viral covid-19 test one day prior to departure, with limited exceptions for recently recovered travellers,38 and proof of full vaccination, for non-US citizens and non-immigrants.39 Consulates worldwide have re-opened under limited consular operations.40 The DOS has begun phased resumption of routine visa processing.41
Immigrant visa applications
Covid-19 bans on new immigrants from abroad has led to a surge in applicants for immigrant visas within the United States, known as adjustment of status, as described further in Section IV.42 As of February 2022, USCIS has noted an ongoing backlog of 436,666 adjustment of status applications, with approximately 27,454 cleared for the month of February 2022.43 Unfortunately, as a result of immense caseloads and backlog, approximately 80,000 employment-based immigrant visas lapsed as of 30 September 2021.44 Availability remains high in the first and second immigrant preference categories for FY2022.45 Immigrant Visa numbers have continued to progress at significant rates, with some previously retrogressed chargeabilities current.46 USCIS now requires completion of the covid-19 vaccination series on the mandatory medical evaluation for all immigrants.47
DOL PERM processing
The DOL processing timelines for PERM labour certification processes have increased substantially.48 The DOL adjudicates Prevailing Wage Determinations between five and seven months,49 and Labor Certifications, Form ETA9089, between seven and 11 months.50
USCIS response extension
Since 1 March 2020, USCIS has implemented a 60-day deadline extension on a number of processes as an accommodation to employers and individual applicants during the pandemic. The 60-day extension applies to Requests for Evidence, Notices of Intent to Deny, Notices of Intent to Revoke or Rescind, and Notices of Intent to Terminate EB-5 Regional Investment Centers.51 USCIS has also implemented a 30-day deadline extension for the filing of Form I-290B, Notice of Appeal or Motion, and Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings.52 USCIS extended this flexibility for all requests and decisions up to 26 March 2022.53
Since May 2021, USCIS has suspended biometrics submission requirements for Form I-539, Application to Extend/Change Non-immigrant Status, if requesting extension of stay, or change of status to H4, L2 or E non-immigrant status, in an effort to shorten the processing times for dependents.54 This suspension applies to 17 May 2023.55 USCIS has also used its discretion to re-use biometrics for certain applications, thus reducing the need for in-person appointments.56
On 23 December 2021, the DOS announced waivers of the interview requirement for non-immigrant visas.57 Until the end of 2022, the DOS instructed consular officers to waive the in-person interview requirement for temporary workers under the H-1, H-3, H-4, L, O, P and Q visas for individuals applying in their country of nationality or residence.58 These individuals must have previously held any type of visa, have never been refused a visa, unless such refusal was overcome or waived, and have no apparent ineligibility or potential ineligibility; or first-time individual petition-based above classifications who are citizens or nationals of a country that participates in the Visa Waiver Program (VWP).59
ii Repeal of Trump-era policies Public Charge Rule
The Biden administration withdrew ongoing court actions that challenged the 2019 Public Charge Rule, vacating the Trump-era rules. As of 17 February 2022, the DHS proposed a new rule, ensuring the ‘fair and humane treatment for noncitizens requesting admission to the US’.60 Under the proposed rule, DHS will consider Supplemental Security Income (SSI); cash assistance for income maintenance under the Temporary Assistance for Needy Families programmes; state, tribal, territorial and local cash assistance for income maintenance; and long-term institutionalisation at the government’s expense when determining public charge.61 The proposed rule reinforces that certain humanitarian visa applicants will be exempt from this determination.62
Immediately upon taking office in January 2021, President Biden reversed many of the discriminatory travel bans placed by the Trump administration, targeting primarily Muslim and African countries.63
Computer programmer policy memo reversed
The Biden administration reversed a 2017 policy memorandum issued under the Trump administration relating to H-1B visas for computer programmers and confirmed it should no longer apply to any pending or new requests for H-1B classification, including motions on and appeals of revocations and denials of H-1B classification.64 The reversion places into effect the 2000 Policy Memorandum, stating most computer programmers are specialty occupation positions, distinguishing positions that involve providing clients with programming analysis, custom designs, modifications or problem-solving of software as opposed to positions dealing with the entry and review of code.65
Prevailing wage requirements reversed early 2021
In October 2020, the DHS issued the ‘Strengthening the H-1B Nonimmigrant Visa Classification Program’ Interim Final Rule, revising the definition of ‘specialty occupation’.66 Subsequently, the DOL issued the ‘Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States’ Interim Final Rule.67 On 1 December 2020, the US District Court for the Northern District of California vacated the DHS Interim Final Rule.68 On 29 June 2021, the US District Court for the Northern District of California issued an order vacating the final rule.69
H-1B selection based on higher wages delayed
A Trump-era rule to move to a selection system incentivising higher wages has since been delayed and revised to the Modernizing H-1B Requirements and Oversight and Providing Flexibility in the F-1 Program.70
Reversion to deference
The Biden administration re-implemented USCIS’s longstanding policy, which was in effect from 2004 to 2017, to defer to previous agency determinations in determining extensions.71
iii Nonimmigrant visa developmentsShergill v. Mayorkas
Following litigation as a result of extended processing times of H4 and L2 derivative status, USCIS reached a settlement in November 2021, which should assist in the continuation of employment authorisation for derivative spouses.72 The policy allows for automatic extensions of work authorisations of E, L2 and H4 eligible spouses if they timely filed the work authorisation extension, and held unexpired derivative status.73 Spouses of E and L classifications have also now been recognised to have valid work authorisation incident to status.74
Due to the ongoing crisis in Ukraine, the DHS has designated Ukraine for Temporary Protected Status (TPS) for 18 months, as of 3 March 2022.75 TPS is available for Ukrainian nationals who were already in the United States as of 1 March 2022 and cannot return safely to their home country. It allows them to lawfully remain in the United States and to apply for work authorisation.76
H-1B specialty occupation visas
After failing to fill the annual H-1B visa quota for FY2022 in the first lottery round on 1 April 2021, USCIS ran two additional lotteries, which was a new development.77 The FY2023 H-1B Cap lottery registration period runs from 1 March 2022 to 18 March 2022.78 H-1B petition approval rates showed modest improvement. In FY2021, USCIS denied 2.2 per cent H-1B petitions, compared to the 7 per cent of FY2020.79 Further, 16.2 per cent petitions received an RFE, down 248 per cent from FY2020’s 40.2 per cent.80 USCIS approved 86.5 per cent petitions receiving an RFE.81
L-1 intracompany transfer visas
L-1 intracompany transfer petitions continued to face scrutiny as the highest classification denied by USCIS, but with a slight improvement under the Biden administration. In FY2021, USCIS denied 20.6 per cent L1 petitions, compared to FY 2020’s 25.1 per cent.82 52.3 per cent received an RFE, down from FY2020’s 54.2 per cent.83 Of those receiving an RFE, USCIS approved 65.4 per cent.84
O-1 extraordinary ability visas85
On 21 January 2022, USCIS issued policy guidance for O-1 extraordinary ability petitions filed on behalf of individuals in STEM fields, and providing guidance on how USCIS determines if prospective work falls within the area of extraordinary ability or achievement.86 The policy guidance points to appendices that include examples of qualifying comparable evidence for STEM beneficiaries.87
F-1 student visas
DHS has added new STEM categories eligible for post-graduate employment authorisation extension.88 Further, F-1 students are eligible to submit applications for employment authorisation through an online filing tool to streamline processing.89
Outlook and conclusions
The first year of the Biden administration appears to have reverted to a more inclusive immigration agency, evidenced by the shift of USCIS’s mission statement.135 The Biden administration continues to fight an uphill battle, with the current immigrant visa backlog reaching increased case processing times, delays in H-4, L-2 and E-3 dependent statuses, and Congress divided on comprehensive immigration reform. Potential litigation to force USCIS to adjudicate much needed work authorisation documents may be a short-term solution, but administrative change, either through the Administrative Procedure Act rule making or legislation overhaul, is required to make an antiquated process more streamlined. Further humanitarian efforts at the southern border remain at crisis levels.136 Similarly, as the world holds its breath for Ukraine, millions of refugees have already begun seeking shelter in nearby countries.137 Finally, as covid-19 becomes less of a player as a result of advances in vaccinations and medical technology, there is finally light at the end of the tunnel for international travel normality.