What Happens to President Trump’s Immigration Proclamations During President Biden’s First 100 Days?

January 15, 2021 | Podcasts

Jackson Walker immigration attorney Sang Shin rejoins the podcast to provide an update on the Trump administration’s recent proclamations to extend bans on all new H-1, L-1, and J-1 visas until March 31, 2021. In addition, there are a number of COVID-19-related immigration restrictions in place now that limit entry into the U.S. from certain hotspots across the globe. Finally, with Democrats now in the majority in the U.S. Senate, will this mean President Biden has a more aggressive agenda for his first 100 days in office when it comes to immigration issues?

Greg Lambert: Hi, everyone. I’m Greg Lambert, it’s January 15th, and this is Jackson Walker Fast Takes. As we near January 20th and transition from a President Trump administration to a President Biden administration, there will still be a lot of President Trump’s policies on immigration solidly in place. I asked Jackson Walker immigration attorney Sang Shin to come back onto the show to catch us up on current events. Sang, welcome back.

Sang Shin: Greg, it’s truly always a pleasure to speak to you, so thanks for having me.

Greg Lambert: Absolutely. So, the last time you were on, there were some immigration policies that were set to expire on December 31st of last year. So what’s happened since we’ve talked last about these policies?

Sang Shin: Yeah, absolutely. The proclamation that I think we are mainly talking about there for the December 31st expiration is the presidential proclamation that bans all new H-1, L-1, and J-1 visas from entering the United States. Well, I don’t think that this was unexpected, but President Trump has extended that proclamation until March 31, 2021, of this year. We do expect that to, kind of, stay in place right now. Now, keep in mind that even with that proclamation in place, what we’ve been doing – what clients have been asking for – is for us to file what we call national interest exceptions. We’ve been able to do that very successfully, and I think that practice has, kind of, persisted throughout many immigration practices around the country. So, national interest exceptions are happening even though that proclamation is in place. I will also just quickly mention that there was also the other proclamation where there are countries specific types of bans to Brazil, the United Kingdom, Ireland, China, the Schengen Area, where if you’ve been physically present there for 14 days, in the last 14 days, and you’re unable to enter the United States, that ban had no expiration date really. I think that it’s going to stay in place, and it still stays in place today.

Greg Lambert: But that’s more due to the pandemic?

Sang Shin: It’s about it’s a COVID-based type of ban, as opposed to the H, L, and J, which is more specific to the visa. The reasoning for that was to ensure that the labor market is good, and that U.S. workers have the first bite at the apple.

Greg Lambert: Well, I know a lot of us were thinking that as we rolled into 2021, things would calm down a little bit. Obviously, it hasn’t. So, with a new Congress in session and a lame duck president, will there be any other policies or rules that you think will be implemented before the Biden administration takes over on the 20th?

Sang Shin: That is such a loaded question. Let me tell you why. Back in November—I know we don’t like to get into politics too much, but just as a historical type of thing back in November—I think it was expected that even though the House is controlled by the Democrats and that we have an incoming President-elect Biden, we also thought that the Senate was going to still be controlled by the Republicans. Well, a lot has changed, right? So in November, President-elect Biden stated that there were some aggressive things and ambitious things he was going to do in the first 100 days. Immigration was kind of on his radar. But he was like, this is what I want to do for immigration, which included mostly things about, you know, border and getting relief for individuals, a pathway to citizenship – things that don’t really affect the business world as much. But he said he was going to try to do those things—very ambitious—and there was some uncertainty of whether he could do that or not. Now that the Senate is, I guess, controlled by the Democrats by one vote, we’ll have to see how much he can accomplish in the first 100 days. But I think that—what we hope to see on the business end is that he will start to repeal some of the proclamations, especially as they pertain to the H, L, and the J. Not to go off on a tangent, but there were also two other types of things that have happened. There have been new rules that affect the H-1B and the labor certification process, as well, since we last spoke. I think the last time we spoke we were talking about how there are prevailing wage type of issues for the H-1B and the labor certification process for green cards.

Greg Lambert: Yes.

Sang Shin: President Trump issued a – what they call – a fast track rule to raise those wage levels. Well, the District Court of California, U.S. District Court, struck that down and said that there wasn’t enough notice. So, it kind of reverted back to status quo in December. But as a couple of days ago, there has been a new rule for our H1-B cap cases coming up, saying that they want to prioritize wages for individuals that have “higher skilled” and higher wages. So, the Trump administration has still been busy during this time period, but now that President-elect Biden has control of all of Congress, we’ll have to see if he can reverse some of those types of rules and which ones is gonna keep in place.

Greg Lambert: Yeah, it’s definitely not boring. So we’ll have to have you back on in a few weeks and see how things are going.

Sang Shin: Yeah, I think we should probably do this a little more often because the updates are happening so fast.

Greg Lambert: Alright, well, Sang Shin, I appreciate you taking the time to talk with me.

Sang Shin: Thanks for having me, Greg.

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The music is by Eve Searls.

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November 18 | Leading up to January 20th, 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.