HR Management & Compliance

Look for Change in Tone on Immigration, Foreign Workers Under Biden

Joe Biden faces a long list of priorities for a new administration—COVID-19, the economy, racial justice, climate change, and more. Immigration and foreign worker visas may not top the list of the most immediate concerns, but they are entwined in many of the issues the president-elect’s team is focusing on.


Lori Chesser, an attorney with the Davis Brown Law Firm in Des Moines, Iowa, says not only is immigration “foundational to our country,” it’s also “part of the conversation” on an array of high-priority issues including the economy and racial justice. “We ignore it at our peril,” she says.

Among the issues she expects the Biden administration to begin addressing are conditions at the southern U.S. border and “the gutting of our asylum law.” She also expects the new administration to address the Temporary Protected Status program, which allows eligible foreigners from certain countries to work in the United States temporarily, and the Deferred Action for Childhood Arrivals (DACA) program, which allows eligible young people who came to the country as children to receive a renewable period of deferred action from deportation.

But major change may not be quickly accomplished. “The Trump administration has changed or implemented 900 immigration policies at last count—a lot to unwind,” Chesser says, adding that presidential proclamations prohibiting immigration and entry of certain visa holders expire on December 31.

“Given the state of the transition, it is possible that they would be extended,” Chesser says, but the restrictions the Trump administration has characterized as related to the pandemic have no expiration date. “I hope all will be revoked and replaced with rational measures to control COVID-19 and strengthen our economy,” she says.

Elaine Young, an attorney with Kirton McConkie in Salt Lake City, Utah, also doesn’t expect quick change on visas. “From a practical perspective, because the U.S. consulates are only slowly starting to accept nonimmigrant visa applications, even without a ban, it would be difficult for most employees to get visas anyway,” she says, so the backlog of visa interviews could serve as a de facto ban.

DACA and Other Policy Challenges

DACA was born during the Obama administration but was targeted for elimination in 2017 by the Trump administration. A 5-4 decision from the U.S. Supreme Court blocked the administration’s plan to rescind the program but left the door open for future efforts.

Many employers cheered the Court’s decision because it removed the immediate uncertainty related to whether employees with DACA status faced threat of deportation.

Young says she would like to see comprehensive immigration reform, and “I expect a bill will come together at some point, though it is unclear whether it could pass, for the same reasons it did not pass in 2013—both sides have not been able to come to consensus on border security and citizenship for undocumented immigrants.”

Chesser also wants to see a permanent solution, but that will take congressional action. “I am hopeful that a Biden administration would not only stop the effort to repeal DACA but also put in motion the permanent legalization of DACA recipients,” Chesser says.

“Given the likely makeup of the Senate, I think that comprehensive immigration reform would be difficult,” Chesser says. “Still, significant progress can be made to modernize our immigration system.” She mentions an agricultural workers program as well as action to reduce the long waiting lines for green cards for people from India and China.

Even if comprehensive reform isn’t possible yet, “room should be available for targeted efforts, such as relief for doctors working in underserved areas and other essential workers, who have more than shown their commitment to the United States during the pandemic,” Chesser says. “At some point, the risk of not doing something is going to outweigh the risk of action.”

Chesser says she has one concern about Biden’s plan on immigration because his published plan “seems to continue the fallacy that foreign workers push out U.S. workers in our economy.” She says she hopes business leaders “will speak up to state their needs for workers in critical areas that are not available in the U.S. labor market.”

Chesser says she worries about the economic recovery if recent rules, including the Trump administration’s recent proposal to increase wages employers have to pay to H-1B-visa holders, go into effect. H-1B visas allow employers to hire nonimmigrant foreign workers in specialty occupations that require specialized knowledge and higher education. She says such policies hurt her clients in rural communities especially.

Employer Obstacles

Uncertainty about DACA and foreign worker visa programs remain issues for employers. Workers are nervous about being able to extend their visas, so employers are pursuing green cards earlier in the employment relationship to avoid having to deal with H-1B extensions, Young says. Costs and processing time also are concerns.

“Employment-based green cards are taking much longer than usual to approve because the Trump administration now requires almost all employment-based applicants to have an in-person interview,” Young says.

Advice for Employers

Chesser says the main problem for employers of DACA recipients is uncertainty. She says employers can help by supporting the review of each DACA recipient’s situation to see if any other options exist, including employer sponsorship.

She also says it’s critical for employers to let members of Congress know “this is not only a social justice issue, but an economic issue, and they expect it to be solved in a bipartisan fashion, as it easily could be if we move beyond the divisive tactics of the last several years,” Chesser says.

Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR web and print publications.