Salary-Based Visa Selection Nixed; Immigration Reforms in Congress

Biden Administration Officially Withdraws Support for Salary-Based Visa Selection System

In a motion filed in court in Washington, D.C., earlier this week, the Department of Homeland Security (“DHS”) has withdrawn its support for a rule, promulgated by President Trump just prior to leaving office, that would have given visa preferences to those individuals earning higher salaries, the salary-based visa selection system.

Every year, 85,000 foreign workers are selected through a lottery system to obtain H-1B nonimmigrant status, a visa category reserved for specialty occupations that require applicants to have at least 4-year college degrees, and sometimes master’s or doctoral degrees. The new rule proposed by former President Trump would have eliminated the lottery system and awarded the visa slots based purely on the highest salaries offered. Advocates against the rule argued that this would largely eliminate H-1Bs for all except those in the highest level positions, significantly reducing the availability of H-1Bs for important entry-level work, including for foreign students graduating from U.S. college or master’s programs, who are just starting their careers.

U.S. Citizenship and Immigration Services will continue to make visa selections by random lottery.

Frustration Mounting, Democrats Weigh Overruling Senate Parliamentarian on Immigration Reforms

Democrats in the U.S. Senate are indicating that they may vote to overrule the Senate Parliamentarian if she recommends against the inclusion of immigration relief measures in a massive budget that is currently under legislative consideration.

As we have previously reported in the NM Immigration Blog, Democrats have been battling back and forth with the Senate Parliamentarian, Elizabeth MacDonough, on this issue. Ms. MacDonough has twice rejected efforts to include immigration reform measures into the spending bill, stating that these measures do not have an impact on federal spending and revenues – a requirement to be included in a Senate spending legislation.

A third version of the reform measures remains under consideration, but Democrats are now hinting at action that might be taken if this final effort fails. 

Senator Alex Padilla (D-Calif.) supported an overrule of the Parliamentarian’s decision, stating “whatever it takes to get this done,” adding that “for Democrats as a whole . . . it’s increasingly clear how important and urgent this is.” Senator Robert Menendez (D-N.J.) added that “all the options” were on the table.

The NM Immigration Blog will continue to cover this story as it develops.

President Administration Recognizes Immigration Judges’ Union

On Tuesday, the U.S. Department of Justice (“DOJ”) recognized a union formed by judges across the United States as the sole representative of America’s immigration judges. The DOJ also reached a preliminary agreement on the terms of a collective bargaining agreement.

This is a reversal of policy from the previous administration, as former President Trump refused to recognize the judges’ union rights. Moreover, the decision by the Biden Administration to change course did not come quickly – Immigration Judge Mimi Tsankov, who heads the union, complained that the president did not immediately begin negotiating with the union. Nevertheless, she was relieved that negotiations had resumed, stating that the National Association of Immigration Judges “has represented immigration judges for 42 years and with this settlement, we can continue to negotiate collective bargaining agreements for and to be a voice for those who adjudicate immigration decisions.”