Subject to pending federal litigation and the Electoral College vote, Joe Biden is the projected president-elect with approximately 60 days remaining until Inauguration Day. Leading up to January 20th, Jackson Walker immigration attorney Sang Shin discusses current immigration policy and what changes may occur once Biden is sworn in. While immigration law has not changed in more than 30 years, some anticipated moves include presidential orders, regulatory changes, and negotiations with a potentially split Congress to pass meaningful immigration laws.

For more insights on potential policy changes under a Biden administration, view the article “Tax Planning for a Biden Presidency” and webinar “Employment Law After the Election.”

Greg Lambert: Hi, everyone. I’m Greg Lambert, it’s November 18th, and this is Jackson Walker Fast Takes. As we move toward a new presidential administration in 2021, I asked Jackson Walker Immigration attorney Sang Shin to come back onto the show and discuss what types of changes he sees on the horizon.
Sang, welcome back to the show.

Sang Shin: Greg, it’s always a pleasure to be here with you.

Greg Lambert: So Sang, we’ve had you on a couple of times before to discuss the significant tightening of the immigration policy over the past four years of the Trump administration. Before we look into the future, would you give just a quick recap on what the current status of immigration policy is in the U.S. today?

Sang Shin: That’s a good way to put it, Greg, because the past four years for immigration purposes has been quite challenging for many of our clients, the employers and the businesses that are trying to sponsor individuals and foreign nationals. It’s been very, very difficult. Just looking back from one of the first executive orders that President Trump put in was his immigration executive order banning individuals from certain countries—they dubbed it the Muslim Ban, whether you want to call it that or not. So, that was one of the things that he came out with first. And then the biggest one from the context of employers was what we call BAHA, or Buy American Higher American, where President Trump said that they will make every effort to ensure that immigration policy is curbed and ensuring that American jobs are preserved. And so behind that back text, there has just been a tremendous amount of scrutiny applied to various cases in matters that we file with Immigration Services on a daily basis. Some of the more recent things, of course as you know due to COVID, is we’ve had a slew of executive orders coming from President Trump that has denied access to certain individuals from countries such as the UK, Ireland, most of the Schengen countries in Europe, Brazil, China—of course, that was due to COVID-related reasons. But one of the bigger ones that came through recently was two executive orders: one to ban individuals applying for a green card from abroad, and also banning new H-1B and L-1 visas – two commonly used visas for foreign nationals. He banned those temporarily until December 31st, 2020, so that it can allow for U.S. workers to apply for jobs and slow down the immigration-related jobs that are coming in.
A lot of these things have kind of happened. I’d just like to add one more thing, Greg. The more recent catch-up thing since our last call is that there have been more regulations that have been placed out. Now, these are not legal changes, but regulatory changes by the administration. What they’ve done is they’ve raised wages from the Department of Labor—so, the H-1B and the green card process, they require there to be a certain prevailing wage to be met—the administration has raised those levels to make the salaries very, very high. They changed the definition of what a “specialty occupation” is and are really limiting individuals from working at customer sites, and the administration wants to get rid of the H-1B lottery system as it is now and instead reserve spots under the H-1B lottery for individuals with higher salary. So overall, just a crazy amount of scrutiny applied on immigration.

Greg Lambert: So, we still have about 60 days before we roll into the next administration. Do you see any changes coming from the Trump administration in this lame duck session?

Sang Shin: No, you know, I really don’t. I really don’t see there being any bit of change to immigration than what it already is. It’s already kind of at its heightened point. Just to throw some statistics at the denial for H-1Bs, you know, they’ve risen from 6% back in 2015 to 29% now. And, you know, all of the regulations and all that have been already put in place, so I don’t really see there being any changes in immigration at this point.

Greg Lambert: Alright, well, with the Biden administration starting at noon on January 20th, what changes do you think we’ll see, say, within the first 100 days?

Sang Shin: Yeah, I mean, that’s a great question. I think that that’s one of the big things that immigration practitioners, employers who sponsor for nationals are looking forward to. There’s already been some sort of inclination that the Biden administration is going to do a lot within the first 100 days, especially where it comes to the repealing of certain executive orders, right? So, that 2017 executive order banning individuals from certain countries that may pose some sort of threat, like I said dubbed the Muslim Ban. I’m pretty sure that the Biden administration is going to repeal that. The ban against the H-1B and the L-1, you know, there’s that. There was an executive order against DACA (Deferred Action for Childhood Arrivals), so those individuals that had parents that brought them here at a very young age and all they know is the U.S. I think that there was an executive order that President Trump put in against them. I know that that will likely be repealed. And then, of course, these regulations that are in place right now that are raising wage levels and all that, I think the Biden administration will take a look at that and repeal a lot of those. What he won’t do, I don’t think, immediately is going to repeal any of the COVID-related restrictions for individuals that have been physically present abroad in a country that has high levels of COVID-related cases. So, we have a lot to look forward to, in my opinion, in the first 100 days.

Greg Lambert: Now, these are things that he can do without having anything go through Congress. Now it looks like the high probability is that, although they’ll have the House, the Senate may still be run by the other party. So is there anything as far as getting laws passed and changed given that he probably won’t have a senate?

Sang Shin: Let’s see how good our president-elect is right? And that’s exactly right. Immigration law has not changed in almost, you know, 30-40 years, and it’s because we always have this imbalance of the laws not getting passed. And so a President-elect Biden can do a lot of repealing and changing and instituting his own executive orders, just like President Trump has, to change all the policies, but the laws have not changed. They remain exactly the same. So, what’s hopeful is that our president-elect can negotiate with and work with the Senate, especially as it looks like they’re going to have a majority in the Senate, to get some meaningful immigration laws passed, you know, within the next four years. And that’s what we’re hoping for, because then we can have something that we can all meet to in the middle and that all individuals in the U.S. will be proud of.
One additional thing for immigration prospects under the Biden administration is that I do think that the president-elect is going to do more about ensuring that there are options for entrepreneurs in the future. One area in the last four years that has continually grown are entrepreneurs who are creating jobs and building their businesses in the United States. There haven’t been visas available for individuals that are creating their businesses, like startup foreign entrepreneurs, and I think that the Biden administration will probably do a little bit more to make some of those visas successful and at least advocate for them.

Greg Lambert: Well, Sang Shin, I appreciate you taking the time to talk with us once again.

Sang Shin: Alright, Greg. I really appreciate it.

Greg Lambert: Once again, thanks to Sang Shin for joining me.

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