Biden Administration Announces New Immigration Policies

Early Wednesday, soon to be President Biden announced major new immigration policies that he wants to quickly implement. The most important to our clients is that he wants to clear up the employment-based immigration backlog and do away with per country visa caps.

This is exciting news and we are hopeful that the new administration will be able to follow through on their intentions. If the administration is able to clear the EB visa backlog, this will now be the best time in years for people from all countries to move forward with an NIW, and the need for professionals from China and India to try for an EB-1A just to get a better priority date is hopefully behind us.

The New Biden/Harris Administration and Immigration Changes

With Joseph R. Biden Jr. being sworn in as the 46th President of the United States and Kamala Devi Harris being sworn in as Vice President on January 20, 2021, there are likely to be significant immigration changes coming soon.

 Vice President Harris is not only the first woman to serve as Vice President; she is the first person of South Asian descent to serve in this position. As the daughter of immigrants, she is likely to have a positive impact on pro-immigration policies, which we expect will be coming out of the White House rather quickly.  Her mother, a breast cancer researcher, arrived in the U.S. from India as a graduate student in nutrition and endocrinology and earned her PhD.  Her father is a professor emeritus of economics, who arrived in the U.S. from British Jamaica for graduate school and earned his PhD in economics.  Kamala Harris graduated from high school in Canada (where she lived with her mother) and eventually earned her law degree in the United States.

President Biden has already said that he will immediately end the “Travel Ban” that Trump instituted early in his tenure. The end of the Travel Ban will allow many of our clients to travel home for the first time in four years. Family members will now be able to more easily enter the U.S. on dependent visas. Consular processing for employment-based green cards and other employment visas will be much more accessible. H-1B visas will now be available for persons previously affected by the Travel Ban.

 The H-1B restrictions recently implemented by the Trump administration will likely be rescinded almost immediately, and the public charge rule and the requirement to file the I-944 with an Adjustment of Status will most likely be done away with early on as well.

Another thing to look forward to is the implementation of premium processing for National Interest Waiver petitions. We are hopeful that premium processing will be implemented by early March at the latest.

While Senate Bill 386 and House Bill 1044 were never passed into law in 2020, new bills will likely be introduced and brought forward. Whether a similar bill will make it into law in 2021 and in what form is just too speculative at this point, but Vice President Harris is a strong proponent of equalizing priority dates, so we would expect to see some proposed changes in the law in 2021. This is one area in particular that we will keep a close watch on so we can keep our clients from all countries informed as to developments related to any significant priority date changes.

What we will be watching the closest is what effect the new administration has on the adjudication of employment-based petitions. The last four years were extremely challenging, with the standards for petitions changing on almost a weekly basis. While our NIW success rate on guaranteed cases stayed above 99%, we did have to respond to more Requests for Evidence (RFEs) that were issued in the past year.  We had to fight hard for our clients to get cases approved, which historically should have been easily approved. It will take some time, but we are hopeful new directives will be given and that the days of unreasonable adjudications and unreasonable USCIS Officers are behind us.

Finally, we are very hopeful that the Biden/Harris administration will implement new policies and that Congress will provide the resources necessary for USCIS to adjudicate cases in a more timely manner. COVID has had a significant impact on the processing times. The lack of income USCIS generated due to Trump’s anti-immigration policies and the lack of necessary funding provided to USCIS also negatively impacted USCIS’ ability to timely process cases.  USCIS officers faced furloughs consistently throughout the past year. With the new administration and the new support they will be given, USCIS officers should be more stable, less unpredictable, and more motivated to be productive.

We are very optimistic about 2021 and the next four years. We are excited about the new hope and welcoming message that the Biden/Harris administration bring to U.S. immigration. We are looking forward to continued success “Representing The Best and Brightest”™️ with the best immigration services possible and helping our clients to become Permanent Residents of the United States of America!

UPDATE: SB386 and HR1044

UPDATE:

Senate Bill 386 and House Bill 1044 were not added to the Omnibus Spending Bill and will not go into law in 2020. Please follow our blog for updates on legislation related to the equalization of priority dates.

Previously Published 12/2/2020:

Late on December 2, 2020 the U.S. Senate passed Senate Bill 386. Senate Bill 386 is the follow up to House Bill 1044 which was passed in July 2019. There are differences between SB 386 and HR 1044 that will need to be reconciled between the House and the Senate and this is expected to take time. Once an agreement is reached, then both chambers will again need to vote to pass the final bill. Once the final bill passes through both chambers, the president will need to sign the bill into law. It is highly unlikely that it will get signed into law prior to President-elect Biden taking office. However, at this point it appears inevitable that the law will pass at some point in the near future. We will not know the final form it will take or its terms until that happens. If you are concerned about the potential affect will have on your ability to timely file an I-485 in the future and would like to file the I-485 adjustment of status while priority dates remain current please feel free to contact us.

NIW PREMIUM PROCESSING COMING SOON!

H.R. 8337 passed through the house on September 20th and on September 30th the U.S. Senate passed H.R. 8337. This heavily bipartisan bill was then signed into law by President Trump today (October 1).

The law allows USCIS to provide premium processing for all three Employment Based categories – EB1, EB2 and EB3. The processing fees have not yet been set but the law sets a cap at no more than $2500. The law also sets a deadline of 45 days for USCIS to render a decision.

H.R. 8337 also now provides for an expedite of the Employment Authorization Document. That fee is set a maximum of $1500 and the time limit set to receive a decision from USCIS is no more than 30 days.

As part of the new premium processing the bill instructs USCIS not to allow processing times for non-premium cases to increase.

Now that the Bill has been signed into law we will have to wait for USCIS to implement it. USCIS will need to set premium processing fees and decide on adjudication time limits. Once USCIS establishes the fees and times they will set an implementation date.

USCIS NEW FEES BLOCKED BY FEDERAL INJUNCTION

The USCIS new rule regarding changes in filing fees was blocked by Federal Judge Jeffrey White. While the injunction is in place the old fee schedule must be followed.

The important fee changes for NIW/EB1A and OPR clients are as follows:

I-140 – The fee will remain at $700 and will not be reduced to $555

I-485 – The fee will remain at $1225 for adults which includes the $85 biometric fee, and includes no additional charge for the I-765 or I-131. The fee for children under 14, which was scheduled to increase to $1130 on October 2, will remain at $750 while the injunction is in place.

I-765 – Was set to be a separate fee of $550 on October 2, and was no longer going to be included with the I-485, this will not take effect while the injunction is in place.

I-131 – Was set to be a separate fee of $590, on October 2, and was no longer going to be included with the I-485, this will not take effect while the injunction is in place.

As with every injunction it is expected that the Federal Government will take the case to the Ninth Circuit Court of Appeals and request that the injunction be lifted. While this may take a little time, there is a good chance that the injunction could be vacated by the Ninth Circuit in the near future.

For those who have an approved I-140 and a current priority or those needing an EAD/AP card soon, we strongly recommend filing the I-485 along with the I-765 and I-131 as soon as possible while the injunction is still in place.

EB1 Priority Dates Move for India and China

The USCIS announced their priority dates for October and the EB1 category jumped significantly. The priority date for both India and China changed from Septembers priority date of March 1, 2018 to Sept. 1, 2020.

The EB2 and EB3 categories also moved.

The EB2 changed from July 8, 2009 to May 15, 2011 for India and changed only slightly for China, moving from January 15, 2016 to October 1, 2016

The EB3 for India made the biggest move changing from October 1, 2009 to January 1, 2015 which is a jump of almost 6 years. The EB3 for China also moved from February 15, 2017 to June 1, 2018.

With the number of I-485 applications we expect to filed this month, we are concerned that the window of opportunity to file an I-485 based on the “Dates For Filing” chart for October 2020 will possibly change and retrogress in November.

If your priority date is now current, we highly recommend filing in October. Late October we will know if the dates are going to continue to progress or if they will retrogress for November 2020.

EB1A and H1B Premium Processing to Resume in June

Starting June 1, USCIS will start resuming premium processing for all eligible Form I-140 petitions.

Starting June 8, USCIS will resume premium processing requests for H1B petitions beginning with premium requests for cap-exempt petitions that are already filed and pending adjudication.

Starting June 15, USCIS “plans” on resuming premium processing for cap-exempt HIB petitions that are filed on or after June 8. It appears that USCIS will determine at a future date when they will begin accepting new H1B cases for premium processing after it has had a chance to determine the number of premium processing requests are made on already pending applications.

Beginning June 22, USCIS “plans” on resuming premium process for all H1B cap-subject petitions.

Given the recent noise being made about possible restrictions being implemented to further limit the availability of H1B visas, it is highly recommended that requests for premium processing be made as soon as possible.

USCIS Offices Reopening June 4, 2020

Interviews and Appointments

USCIS is officially scheduled to reopen its offices on June 4 and USCIS will begin resuming interviews and biometric appointments. USCIS will first send out notices to applicants and petitioners with previously scheduled appointments and interviews.

As USCIS begins to reopen, the number of available appointments and interviews that they are scheduling will be reduced. As such we anticipate that, with prior scheduled interviews taking priority, a slight backlog and delay for newly scheduled interviews can be expected. Appointment notices will contain information on safety precautions that visitors to USCIS facilities must follow.

Guidelines for Entering USCIS Facilities

  • Visitors may not enter a USCIS facility if they:
    • Have any symptoms of COVID-19, including cough, fever or difficulty breathing;
    • Have been in close contact with anyone known or suspected to have COVID-19 in the last 14 days; or
    • Have been individually directed to self-quarantine or self-isolate by a health care provider or public health official within the last 14 days.
  • Visitors may not enter the facility more than 15 minutes prior to their appointment (30 minutes for naturalization ceremonies).
  • Hand sanitizer will be provided for visitors at entry points. 
  • Members of the public must wear facial coverings that cover both the mouth and nose when entering facilities. Visitors may be directed to briefly remove their face covering to confirm identity or take their photograph. There will be markings and physical barriers in the facility; visitors should pay close attention to these signs to ensure they follow social distancing guidelines.
  • Individuals are encouraged to bring their own black or blue ink pens.

More information on visiting USCIS facilities can be found at uscis.gov/visitorpolicy.

Possible Immigration Fee Increase and Surcharge

USCIS announced that it will be seeking funding from Congress to help with a budget deficit it is experiencing as a result of a decrease in filings for immigration benefits. USCIS has indicated that to make up for the additional funding being sought from Congress that they intend to add a 10% surcharge to all USCIS filing fees. USCIS had already announced its intent to increase filing fees back in November. Those fee requests have been under public review and have yet to be implemented. It appears inevitable that those fee increases will be implemented soon. Additionally the likelihood that USCIS will begin charging a 10% surcharge on filing fees is extremely high.

Trump Immigration Executive Order

UPDATE April 22, 2020 President Trump this evening signed an executive order banning the issuance of green cards to foreign nationals who are outside of the country. The order is effective as of 11:59 p.m. eastern daylight time on April 23, 2020. The order excludes persons in the U.S. who are adjusting their status. If you have filed or are filing an adjustment of status, then you are exempt from the ban. The order also does not restrict the filing of NIW, OPR or EB1 petitions. Although the ban targets individuals who are out of the country, the ban excluded those who are seeking to enter through the National Interest or those who are medical professionals or are seeking to perform medical research. Trump indicated that he may modify the order in the future so we will monitor the situation closely and update again if there are any changes. BOTTOM LINE: THE EXECUTIVE ORDER WILL HAVE NO EFFECT ON ANY OF OUR CLIENTS.

Here is a list of the exceptions to the ban:

(i) any lawful permanent resident of the United States;
(ii) any alien seeking to enter the United States on an immigrant visa as a physician, nurse, or other healthcare professional; to perform medical research or other research intended to combat the spread of COVID-19; or to perform work essential to combating, recovering from, or otherwise alleviating the effects of the COVID-19 outbreak, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees; and any spouse and unmarried children under 21 years old of any such alien who are accompanying or following to join the alien;
(iii) any alien applying for a visa to enter the United States pursuant to the EB-5 Immigrant Investor Program;
(iv) any alien who is the spouse of a United States citizen;
(v) any alien who is under 21 years old and is the child of a United States citizen, or who is a prospective adoptee seeking to enter the United States pursuant to the IR-4 or IH-4 visa classifications;
(vi) any alien whose entry would further important United States law enforcement objectives, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees, based on a recommendation of the Attorney General or his designee;
(vii) any member of the United States Armed Forces and any spouse and children of a member of the United States Armed Forces;
(viii) any alien seeking to enter the United States pursuant to a Special Immigrant Visa in the SI or SQ classification, subject to such conditions as the Secretary of State may impose, and any spouse and children of any such individual; or
(ix) any alien whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.

UPDATE: April 21, 2020 President Trump walked back the extent of the ban suggested by his prior tweet. President Trump stated in his briefing that the immigration ban would only be for 60 days and would only target green card applications. From what we can tell, the green card applications that he is referring to would be limited to people residing outside of the U.S. We will update again once we learn more.

Late on April 20, 2020, President Trump tweeted, “In light of the attack from the Invisible Enemy, as well as the need to protect the jobs of our GREAT American Citizens, I will be signing an Executive Order to temporarily suspend immigration into the United States!”


As of this morning, Whitehouse officials were working on a draft of an executive order, with the expectation that it would be ready for Trump’s signature by the end of the week. Right now, it is just speculation as to what the order will state and what restrictions will be put in place. However, the order is expected to be temporary.


While the executive order is likely to issue a temporary ban on the issuance of new visas, it most likely will not prohibit the submission of new applications within the United States or the processing of NIW, OPR or EB1A petitions. We are continuing to work hard to prepare and file our client’s cases with the USCIS. We are hopeful that the Adjustment of Status cases already on file prior to the executive order will continue to be processed.


We will update this blog as more news becomes available.