The Outlook On H-1B Visas And Immigration In 2022

Betty Q. Hixson

For the sixth consecutive year, we should not expect Donald Trump to visit the Statue of Liberty and celebrate America’s tradition as a nation of immigrants. But what will Joe Biden, his administration and Congress do on immigration in 2022? Events and policy choices in 2022 will help determine Joe Biden’s immigration legacy.

Green Cards And Other Reforms in a Reconciliation Bill: Sen. Joe Manchin’s (D-WV) announcement he will not support the Build Back Better Act reconciliation bill may end chances to pass legislation to protect unauthorized immigrants and provide relief for family and employment-based immigrants waiting years in green card backlogs. The Senate parliamentarian’s advice already had dimmed prospects for the bill’s immigration provisions. For Joe Biden’s immigration legacy, enacting reforms in a reconciliation bill is the difference between an NFL team winning the Super Bowl and the team not even making the playoffs. As of this writing, “not even making the playoffs” is the most likely outcome. If the bill is resurrected, it is unclear if Senate Democrats will include measures to help people in legal immigration backlogs.

H-1B Visa Regulations: The Biden administration’s regulatory agenda for 2022 includes a number of H-1B rules. Before evaluating the rules, below is a quick review of facts about H-1B visa holders:

–        “Median annual compensation for all approved H-1B beneficiaries in FY 2020 was $101,000,” according to U.S. Citizenship and Immigration Services (USCIS) data, and 64% possess a master’s degree or higher.

–        Numerous academic and government studies show H-1B visa holders are paid the same or higher than comparable U.S. professionals. U.S. law requires employers to pay the higher of the actual or prevailing wage paid to U.S. workers with similar experience and qualifications.

–        On top of wages, U.S. employers pay between $5,000 to $30,000 in legal and government fees to petition for H-1B professionals, and $10,000 to $15,000 to sponsor them for permanent residence, according to the National Foundation for American Policy (NFAP).

–        There are more than 1.5 million job vacancy postings in computer occupations (as of December 6, 2021), according to an NFAP analysis of EMSI data, and only about 56,000 new H-1B petitions annually go to computer jobs. That means even if one believes (incorrectly) there are a fixed number of jobs, there are close to 30 times more available jobs in computer occupations than H-1Bs who fill such jobs annually.

As the data above illustrate, critics of H-1B visas make one primary—and untrue—claim, that H-1B visa holders are “cheap labor” rather than valuable employees that contribute to the U.S. economy. Restricting H-1B visas prevents international students from working in the U.S. after graduation and does not address the per-country limit and lack of green cards that harm employment-based immigrants, particularly those from India. The potentially decades-long waits for permanent residence limits mobility, discourages entrepreneurship and encourages talented individuals to make their careers in other countries.

As for U.S.-born professionals, economist Madeline Zavodny found, “Median earnings of [native] college graduates with a computer-related major are 35 percent higher than other STEM (science, technology, engineering and math) majors and fully 83 percent higher than non-STEM majors.”

The Department of Homeland Security (DHS) plans to publish a regulation on “Modernizing H-1B Requirements and Oversight and Providing Flexibility in the F-1 Program.” Some aspects of the rule do not sound controversial, such as to “provide flexibility for start-up entrepreneurs” and addressing situations that USCIS defines as preventing the agency from accepting “a cap subject H-1B petition submitted more than six months in advance of actual need.”  

However, another part of the regulation could invite litigation and controversy. Not long ago, USCIS/DHS arrived at a legal settlement on a key aspect of the proposed rule—work by H-1B professionals at a customer’s location. “DHS proposes to revise the regulations relating to ‘employer-employee relationship,’” according to the rule summary. In 2020, judges ruled the Trump administration unlawfully redefined the term “employer-employee relationship.” Judges also found that Trump officials illegally limited what qualified as an H-1B specialty occupation. (See here for a history of the Trump administration’s H-1B policies.)

Those two policies raised H-1B denial rates to record levels. After the Trump administration was forced to change its policies, the denial rate for new H-1B petitions for initial employment dropped to 1.5% in the fourth quarter of FY 2020, much lower than the denial rate of 21% through the first three quarters of FY 2020, according to an NFAP analysis.

The decline in denial rates started shortly after USCIS, on June 17, 2020, as part the legal settlement with the ITServe Alliance, issued a new policy memo and withdrew a February 2018 memo on “contracts and itineraries.” USCIS also rescinded the (January 2010) “Neufeld” memo the Trump administration interpreted to deny more H-1B petitions when companies sent an H-1B visa holder to work at a customer’s site. It is unclear what changes to employer-employee relationship USCIS may propose or whether it will address who qualifies for an H-1B specialty occupation. May 2022 is a tentative publication date for the rule. 

Another rule that may invite litigation “proposes to amend and clarify the regulations to specify that the 9-11 Response Fees will apply to all H-1B and L-1 extension petitions.” The legislative history suggests it would be unlawful for USCIS to reinterpret the law as the regulation proposes and impose higher fees on companies with more than 50 employees with at least 50% of their workforce in H-1B and L-1 status.

A Department of Labor (DOL) rule that could result in higher required minimum wages for H-1B visa holders and employment-based immigrants remains on the Biden administration’s regulatory agenda. On December 1, 2020, in a significant victory for businesses and universities in U.S. Chamber of Commerce v. DHS, U.S. District Judge Jeffrey S. White, in a written order, vacated and set aside DHS and DOL H-1B rules. On January 14, 2021, the Trump administration attempted to salvage the DOL regulation by publishing a final rule. The final rule was only slightly modified from the original and still aimed to price H-1B visa holders and employment-based immigrants out of the U.S. labor market.

After the Biden administration delayed the DOL rule, the U.S. Chamber of Commerce and allied business groups and education organizations filed an amended complaint that continued its lawsuit to end the Department of Labor wage regulation. In June 2021, Judge White vacated the DOL rule, and the Biden administration did not oppose setting aside the regulation. That means the Department of Labor would need to engage in a new rulemaking process (i.e., issue a new regulation) to change the current prevailing wage regulations for high-skilled foreign nationals.

The Biden administration requested information from the public on improving the DOL wage system. It is unknown whether the administration intends to make the system more accurate or if there are DOL officials who want to follow the Trump administration’s path by requiring employers to pay H-1B visa holders and employment-based immigrants well above the market wage to price them out of the U.S. labor market.

When sponsoring employment-based immigrants, employers must remain aware of the Department of Justice (DOJ) settlement with Facebook that resulted in a civil penalty of $4.75 million and up to $9.5 million to eligible victims of Facebook’s alleged discrimination. The settlement over advertising during PERM (permanent labor certification program) shows the U.S. government can penalize a company even if the employer complies with DOL rules on sponsoring employment-based immigrants.

Fee Increases and Premium Processing: At least three fee rules are expected in 2022. A USCIS “fee schedule” rule will likely result in the agency raising various fees, though likely not to the extent the Trump administration attempted. “USCIS projects that its costs of providing immigration adjudication and naturalization services will exceed the financial resources available to it under its existing fee structure,” according to the rule summary. “DHS proposes to adjust the USCIS fee structure to ensure that USCIS recovers the costs of meeting its operational requirements.”

A second rule would implement legislation allowing USCIS to offer premium processing for Form I-539 to change or extend status, including for F, J and M visas and E, H, L, O, P and R dependents. This could help spouses waiting for approvals of H-4 EADs (employment authorization documents).

According to a Federal Register notice published on December 29, 2021, the State Department has proposed a rule to increase fees for workers, travelers, international students and exchange visitors in 2022. If the rule goes into effect, visa fees would increase as follows:

–         The visa fee will increase from $160 to $245 per application for “business and tourist travel (B1/B2); students and exchange visitors (F, M, and J); crew and transit visas (C and D); representatives of foreign media (I), and other country-specific visa classes, as well as BCCs [Border Crossing Cards] for applicants age 15 or older who are citizens of and resident in Mexico.”

–         The visa fee will increase from $190 to $310 for “all petition based NIVs [nonimmigrant visas] related to employment in the United States.” This includes “temporary workers and trainees (H); intracompany transferees (L); aliens of extraordinary ability (O); athletes, artists, and entertainers (P); international cultural exchange participants (Q); and religious workers (R).”

–         “The Department also proposes to increase the E category NIV fee from $205 to $485.” (See here for more on E visas.)

–         The State Department proposes to raise from $120 to $510 the cost of a waiver of the two-year home-country physical presence requirement for J-1 exchange visitors who are “subject to a two-year home-country physical presence requirement.”

Green Card Backlogs and Visa Processing: Twitter users criticized U.S. Citizenship and Immigration Services (USCIS) after its social media account listed green card processing among its 2021 accomplishments—even though, according to the agency’s records, USCIS approved 172,000 of 237,000 eligible employment-based green card cards. The big question in FY 2022: Will USCIS improve upon its FY 2021 processing totals, or will more employment-based green cards go unused?

U.S. consulates are also well behind in their work, and many individuals have been waiting months for visas. (See here.) Many visa holders are advised not to leave the United States because they might not receive a visa to return in timely manner. In an attempt to improve the situation, on December 23, 2021, the State Department announced, “[C]onsular officers are now temporarily authorized, through December 31, 2022, to waive in-person interviews for” H-1B, H-3, L, O, P and Q visas.

Another positive change could come next year in the form of new guidance for “National Interest Waivers” in the employment-based second preference. The new guidance could expand the use of National Interest Waivers for immigrant entrepreneurs and potentially for a broader range of highly skilled individuals with expertise in science, engineering and other fields. Immigrants have been frustrated with the narrow interpretation adopted in current USCIS guidance, since using such waivers allow foreign nationals to “self-petition,” meaning (per USCIS) “they do not need an employer to sponsor them,” and can also be a relief from DOL’s lengthy labor certification process.

Refugees: The Trump administration’s actions toward refugees matched its rhetoric: Donald Trump’s speeches alleged refugees were a threat, and his administration admitted few of them. How few? If between FY 2017 and FY 2021 annual refugee arrivals had simply remained at the FY 2016 level of 85,000, nearly 300,000 more refugees would have arrived in the United States during those five years, according to a National Foundation for American Policy analysis.

The Biden administration’s rhetoric toward refugees has been far more positive. In addition, the administration used its parole authority to bring tens of thousands of Afghans to America after the fall of Kabul. Critics would argue the Afghans would not have needed to flee the country if the Biden administration had not pulled all U.S. troops from the country or at least had anticipated better the need to provide refuge to large numbers of U.S. allies and their families. The need for protection continues. “More than 60,000 Afghan interpreters and others who have applied for visas to seek shelter in the U.S. after working alongside American forces still remain in Afghanistan,” a State Department official said in mid-December 2021, reported the Wall Street Journal.

In FY 2021, only 11,411 refugees arrived in the United States, a total that will need to be far higher in FY 2022 and later years for Joe Biden’s legacy on refugees to equal his administration’s positive rhetoric.

Central Americans and the Border: One must wonder what the border situation would have looked like in 2021 if the Biden administration had broken with Trump administration policies by 1) permitting anyone who wished to apply for asylum to do so at a port of entry, 2) rapidly expanding ways for individuals to apply for protection in their home countries to preempt people from setting out for the U.S. border and 3) increasing H-2B or other visas (including asking for quick legislative action) and potentially using parole to permit more lawful employment opportunities for Central Americans, many of whom are driven here by desperate economic circumstances.

Instead, the Biden administration continued to use Title 42, which allowed them to expel individuals who crossed the border to find work or apply for asylum. Using Title 42 inflated the border numbers by causing Border Patrol agents to apprehend the same individuals multiple times and compelled asylum seekers to cross the border illegally rather than present themselves at a lawful port of entry, which also raised the numbers. As a result, statistics showed a record number of apprehensions in FY 2021 (despite imperfect comparisons to other years) and the media broadcast visuals of large groups of people crossing the border and turning themselves into Border Patrol agents and later being put into often overcrowded detention centers. Scenes of people waiting in line at ports of entry would have presented a better visual—for those interested in politics—and permitting asylum applications at ports of entry would have reduced illegal crossings (relevant for those interested in policy) and been more humane.

More migrants came to the United States in 2021 than in 2020 because the U.S. economy is now desperate for workers, while at the same time, Covid-19 and other events have shattered the economic prospects of many people in Latin America. “Day laborers, typically men who migrated to the U.S. without legal authorization and are paid in cash for jobs that last a few hours to a few days, have long been among the most tenuously employed people in the U.S.,” notes Alicia Caldwell of the Wall Street Journal. “Due to a worker shortage in a growing economy, they are enjoying leverage they haven’t before known. Hourly wages of $25 are common, workers in Pomona [California] said, compared with about $15 before the pandemic. And with opportunities plentiful for many day laborers, they are now choosier about what jobs they take.”

Illegal entry rose significantly under Donald Trump until the Covid-19 pandemic reduced entry for several months in 2020. Illegal entry will likely stay at politically problematic levels for Joe Biden until there are substantially different policies, some of which, such as a significant increase in temporary work visas, are impossible without legislation. The Biden administration released 20,000 additional H-1B visas in December 2021, but only 6,500 “will be set aside” for Central Americans, reported the Wall Street Journal’s Michelle Hackman.

The Midterm Elections: Republicans plan to make immigration a central issue during the midterm elections, focusing on the border. If Republicans win one or both houses, expect regular and contentious oversight hearings on immigration in Congress in 2023. It also means 2022 might be the last chance during the Biden presidency for Democrats to pass pro-immigration legislation, with or without Republican votes.

The Biden administration has its immigration plate full in 2022, including court cases and rules on “public charge” and Deferred Action for Childhood Arrivals (DACA). Unless Congress passes legislation that includes immigration reform, Joe Biden, like his predecessors, will be left with a pen, a phone and an immigration legacy defined by executive action.


https://www.forbes.com/sites/stuartanderson/2022/01/03/the-outlook-on-h-1b-visas-and-immigration-in-2022/

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