Five 2021 Business Immigration Trends That Could Affect Your Workforce in 2022

As we prepared for a productive new year, we took time to consider the numerous changes that the Biden administration made to the U.S. employment-based immigration system in 2021. Many of those changes were productive, and some presented challenges in the human resources space. Employers should expect similar changes in 2022.

1. Employers Should Understand COVID-19's Impact on Travel and Immigration

Although the COVID-19 pandemic disrupted nearly every aspect of the U.S. immigration system in 2020, the rollout of vaccines, increased testing and other public health measures moderately eased certain restrictions on travel and employment-based immigration in 2021. Employers should cautiously plan to take advantage of certain eased restrictions in 2022.

First, to reduce the significant backlog of immigrant and nonimmigrant visa applicants waiting for an interview abroad, the U.S. Department of State created a four-tiered approach for immigrant visa prioritization at consulates and embassies worldwide. The Department of State also recently announced a new temporary rule that grants consular officers flexibility to waive the personal appearance of certain visa applicants who regularly apply for admission. Specifically, the government can now waive the personal appearance requirement for individuals who were approved for an immigrant visa in the same classification and on the same basis as their current application on or after Aug. 4, 2019.

Second, USCIS worked to address processing delays and provided temporary flexibilities in response to COVID-19. USCIS faced the unprecedented challenge of processing over 237,000 employment-based green card applications last year. That number included not only the agency’s usual 115,000, but also an additional 122,000 immigrant visa requests that the Department of State could not process in 2020 due to the pandemic. By the end of 2021, USCIS approved over 172,000 employment-based adjustment of status applications, which was an increase of 50% above the typical baseline. Employers who are now awaiting adjudications should expect matters to continue to progress in 2022.

Finally, in early November, the White House eased travel restrictions on all international travelers coming into the U.S., replacing the rigorous regional COVID-19 travel bans with more feasible vaccination and testing requirements. But when the Omicron variant caused concern in the Republic of South Africa, the U.S. reexamined its policies on international travel. The government concluded that further measures were needed to protect the public health from travelers entering the U.S. from the Republic of South Africa and neighboring countries. This very recent development indicates that employers should not let their guard down because international travel may still experience COVID-19 disruptions in 2022.

2. The DOL Recently Proposed Wage Increases for H-2A Guest Laborers in Certain Agricultural Jobs

The Department of Labor proposed to amend its rules governing the certification of agricultural labor or services performed by temporary foreign workers in H-2A nonimmigrant status on Dec. 1, 2021. The proposed final rule would allow the DOL to conclude that certain agricultural laborers engaged in transportation work may not qualify for wage exemptions that traditionally apply in the agricultural context. Stakeholders may submit written comments on the proposed rule on or before Jan. 31, 2022. 

3. H-1B Employers Should Benefit From the Reinstatement and Rescission of Regulatory Hurdles

While still in office, former President Donald Trump proposed a new rule that would have changed the H-1B lottery from a random selection process to a process that selects visa candidates based on wage levels. This change would have given highest priority to employees earning the highest salaries in their respective specialty occupations. But the U.S. Chamber of Commerce led a coalition of business and higher education plaintiffs in a lawsuit to challenge that proposed rule. The U.S. District Court for the Northern District of California vacated the proposed rule in September 2021. The Department of Homeland Security appealed, but voluntarily dismissed that appeal in November 2021. Therefore, employers should prepare for an H-1B program that will continue as a random selection process in 2022.

H-1B petitioners and employees benefited from a number of other policy changes last year as well. For example, USCIS reinstated its policy of deference to prior determinations when adjudicating extension requests. The agency also rescinded a policy memo for H-1B computer-related occupations, which had previously put up hurdles for employers sponsoring H-1B workers in computer programmer jobs. Likewise, the government progressively identified innovative ways to provide for temporary flexibilities related to COVID-19, including allowing employers more time to submit responses to certain USCIS requests and notices.

4. Automatic Extension of Work Authorization Is Now Available for L-2, H-4 and E Dependents

In November 2021, USCIS rescinded its previous guidance and issued new policy guidance to address the automatic extension of employment authorization for certain H-4, E and L nonimmigrant dependent spouses. The regulations at 8 CFR 274a.13(d) provide that Employment Authorization Documents (Form I-766 or EAD) may be automatically extended in certain circumstances. Under the agency’s new guidance, certain H-4, E or L dependent spouses will qualify for this automatic extension if they meet certain conditions. This change should expand the talent pool available to employers hiring during the great resignation. Eligible L-2, H-4 and E dependent visa holders who have timely applied for an extension of their EAD will receive an automatic extension of at least six months through the expiration date of their Form I-94. USCIS also clarified that in the near future, once the government has created a new Form I-94 record that formally designates the individual as an L-2 spouse or E spouse, those dependents will be able to work without restriction as soon as they enter the U.S. and will no longer need to rely on an EAD to work.

5. Employers Should Keep an Eye on the U.S. Citizenship Act of 2021 

In February 2021, “The U.S. Citizenship Act of 2021” bill was introduced in Congress, which aimed, in part, at growing our economy by clearing employment-based visa backlogs, recapturing unused visas, reducing lengthy wait times, and eliminating per-country visa caps. The bill also:

• Eliminates other unnecessary hurdles for employment-based green cards
• Improves access to green cards for workers in lower-wage sectors
• Makes it easier for graduates of U.S. universities with advanced STEM degrees to stay in the U.S.

The bill provides dependents of H-1B visa holders work authorization, and children are prevented from “aging out” of the system. The bill also creates a pilot program to stimulate regional economic development, gives the Department of Homeland Security the authority to adjust green cards based on macroeconomic conditions, and incentivizes higher wages for non-immigrant, high-skilled visas to prevent unfair competition with American workers. Congress did not advance the U.S. Citizenship Act before the 2021 Holiday season ended. Whether this act or any other pending immigration legislation will become law in 2022 remains to be seen, but employers should remain watchful and hopeful for productive regulatory change in the employment-based immigration space.

Please contact Brandon Davis or Laura Buck of Phelps’ Immigration team if you have questions or need compliance advice or guidance.