President Joe Biden entered office last year with big expectations, as well as serious problems to tackle. The White House and the Department of Homeland Security (DHS) released several new policies to alleviate burdens and bottlenecks in the immigration system during 2021, and rescinded some of the more egregious and restrictive immigration policies put in place under the previous administration. Heading into 2022 we hope to see further improvements, but also expect there to be some difficulties as well.
USCIS and DOS backlogs should slow, but won’t disappear
The USCIS backlog exploded in the past two years, reaching more than 8 million pending cases at the end of FY2021. The closure of U.S. embassies and consulates around the world due to the outbreak of the Covid-19 pandemic in March 2020 has also led to a staggering green card backlog at the U.S. Department of State: at the end of FY2021 there were more than 9 million green card applicants stuck in the backlog. It is estimated there are about 7.5 million people waiting in the family-based green card backlog, and 1.6 million on the employment-based side.
Some experts consider the backlogs, particularly at USCIS, to be a “resource issue” that may require Congress to provide additional financial support, because USCIS is funded almost entirely by fees it receives from applicants.
The administration has taken some steps to reduce the bottlenecks and delays, like reusing biometrics for some applicants beginning in March 2020, restoring a policy ended by the Trump administration that allows USCIS to defer to its own, earlier decisions on renewal and status extension requests, and expanding staffing and overtime at its Lockbox facilities. The State Department also launched a hiring surge during summer 2021. Increased staffing and training should allow these and other improvements that reduce processing times and increase flexibility to continue.
However, 8 million pending cases at USCIS and 9 million at DOS will take a lot of resources to clear, even with increased staffing. And given yearly increases in the number of applications received by the agencies, it seems reasonable to expect that trend to continue into 2022. Thus, though it is possible that USCIS and DOS will make a dent in the millions of pending applications, these backlogs will not be eliminated in 2022.
Immigration reform through legislation could happen piecemeal
On Dec. 16 the Senate parliamentarian decided that immigration advocates’ “Plan C” — parole-in-place and work authorization for undocumented people who’ve been in the U.S. continuously since 2011 — cannot be included in the Build Back Better Act, which Democrats are trying to pass through the budget reconciliation process.
Separate immigration proposals passed in the House bill, such as a green card recapture provision or provisions allowing an applicant to pay a supplemental fee to expedite their case, have not been presented to the parliamentarian yet, so it is possible those proposals could survive.
Some Democratic lawmakers and immigration advocates have called for the parliamentarian to be ignored or replaced, but several Senators have indicated they are against this option. Lawmakers have not announced a “Plan D,” so, at this time, immigration reform via the Build Back Better Act is stalled in the Senate, and potentially dead.
However, some advocates still believe that while comprehensive immigration reform may not be possible, there are specific policies that are popular with the public that could be acted on individually. Legislation to protect Dreamers, essential workers, and Temporary Protected Status holders are all broadly popular, and Congressional Democrats will feel pressure from their constituents to deliver on immigration promises made on the campaign trail.
Improvements to the H-1B Visa Program
The Biden administration has signaled that it plans to further improve the H-1B visa program, which allows U.S. employers to hire highly skilled foreign workers for positions that are difficult to fill. The program skews heavily towards STEM occupations, with software developers making up the biggest piece of the pie.
The H-1B program has received fire from pro and anti immigration advocates, some claiming it artificially drives down wages for U.S. workers, while others argue that it can lead to exploitation of foreign workers by unscrupulous employees. Given the labor shortage, especially the longstanding need for additional workers in STEM fields, the Biden administration is seeking to overhaul the program to address these various issues.
Some proposed changes this year include:
- Provide flexibility for start-up entrepreneurs
- Changes to the definition of the employer-employee relationship
- Raising wages for H-1B workers
- Establishing rules for employer site visits
Congressional inaction on immigration will force executive action
Given the hyper-partisan gridlock in Congress, it’s unlikely much meaningful immigration legislation will be passed in 2022, which means we could begin to see an increase in the executive branch’s action on the issue. This could take the form of presidential proclamations and executive orders, or greater use of the agency rulemaking process, just as the previous administration did regarding the 2019 public charge rule or the 2020 fee rule, for example.
Last year we saw the American Dream and Promise Act and the Farm Workforce Modernization Act both pass in the House before dying in the Senate. More recently, the Build Back Better Act was also passed by the House, but has been hung up on Senate procedural rules related to budget reconciliation and horse-trading around climate provisions and the Child Tax Credit.
Despite 72% of Americans supporting a path to citizenship for Dreamers, the Dream and Promise Act is essentially dead in the Senate. In response to this stalemate and the ruling of a federal judge in Texas, the Department of Homeland Security (DHS) issued a proposed rule to codify the DACA program. After public notice and comment, the Rule will be finalized and become part of the Code of Federal Regulations, which governs immigration law along with the Immigration and Nationality Act (INA).
With obstructionism reaching staggering new heights in the Senate, we should expect to see a greater use of executive power from the President himself, as well as through his cabinet agencies and their rulemaking.
Government fee hike
The State Department has proposed significantly increasing fees for most nonimmigrant visas in 2022. Visitor visas (B-1/B-2) and student visas (F, M, J) will likely increase by more than 50% — from $160 to $245. Employment visas will see an even greater jump, from $190 to $310 – a 63% increase.
The new fees will go into effect before September 2022.
For more information, Boundless breaks down the proposed new fees.
Litigation will continue as the Biden administration struggles to undo Trump-era policies
The last five years were marked by extensive and ongoing litigation, and 2022 shows little sign of departing from that trend. At the close of 2021 there were active lawsuits over the Migrant Protection Protocols (“Remain in Mexico”), President Biden’s ICE enforcement priorities, work permit processing delays, asylum restrictions, public health orders at the southern border, and whether the federal courts have the authority to review DHS’s decisions on whether a noncitizen can be protected from deportation. These cases will continue in 2022, likely with more to join them.
Over the past ten years we have seen that executive action on immigration, be it an agency policy memorandum like the one that implemented DACA, an executive order like the Muslim ban, or a Rule published in the Federal Register like the 2019 public charge rule, frequently results in the swift filing of lawsuits.
In some cases, such as the public health order frequently referred to simply as “Title 42,” the Biden administration has chosen to continue unpopular Trump-era policies, resulting in the resumption of litigation. In the case of “Remain in Mexico,” the Biden administration formally rescinded the policy, only to have the state of Texas and others sue to force it back into effect. Other cases, such as those related to the backlog of applications for Employment Authorization Documents (EAD) will continue simply due to the fact that USCIS has as yet been unable to clear the backlog, regardless of a change of leadership at the top.