US immigration: How Biden’s election affects global mobility

President-elect Joe Biden will reverse many of Donald Trump's immigration rules. Photo: CNP/DPA/PA Images

The election of Joe Biden as 46th President of the United States of America is set to mark a new era in US immigration. Nita Upadhye examines how global mobility has been stymied under Donald Trump and how things might look under the Democrats.

The US market continues to hold powerful appeal and opportunity for organisations both with existing operations and those looking to pursue new ventures that can only be achieved through the fluid movement of key talent.

Immigration was one of the key tenets which secured Donald Trump the US presidency in 2016. He remained dogged in his efforts to reduce migration to the US and during his tenure, annual net immigration fell by half between 2016 and 2019, to approximately 600,000 people per year, the lowest level since the 1980s.

President-elect Biden’s vision for US immigration policy is markedly different from that of his predecessor. He has stated that immigration is vital to the US economy and the country’s cultural foundation, and has pledged to commit “political capital” to deliver immigration reform.

Not only will the restrictions Trump put in place on current visa categories be reversed, but there is also likely to be a renewed interest in creating a start-up visa category given that similar models in Canada, Australia and New Zealand have succeeded in creating jobs”

Among the anticipated changes, economic migration routes are expected to open up, allowing companies to pursue opportunities in the US with renewed vigour, Covid restrictions permitting.

Trump’s legacy on immigration

The Trump administration passed more than 400 executive actions targeting all channels of immigration – employment, family and humanitarian-based migration – and continued to pass new regulations to suppress legal immigration as recently as last month.

Trump was adept at finding alternative paths to lower migration numbers: increasing processing times, blocking the entry of legal immigrants to the US of nearly all visa categories, including employment-based immigrants, suspending the entry of foreign nationals on L-1 and certain other temporary visas. In response to Covid-19, Trump suspended visa processing and banned entry into the country with only limited exceptions, in the name of protecting US jobs.

Reducing legal immigration is damaging to economic growth and future prospects of the labour market. It impacts job creation, prosperity, wealth generation and the overall competitiveness of the US. The damage becomes more significant as the US seeks to safeguard its economic status both during and after the pandemic.

Trump has still not accepted the election result. Photo: Chris Kleponis – Pool via CNP/DPA/PA Images

The impact of narrowing and closing so many routes into the US has been felt by foreign employers, hitting global mobility programmes and talent migration activity.

Where routes did remain open, overseas employers and workers faced more challenging petition processing. Work visa applications that would have been considered “comfortably certain” for approval pre-Trump started to present uncertain prospects for employers and petitioners.

For example, visa applications to transfer non-US workers to new or established US branches under the L-1 visa, B-1 visa business travellers, and even those travelling visa-free for short business trips under the ESTA scheme have all become subject to heightened adjudication scrutiny. More “Requests for Evidence” are being issued and adjudicators have been afforded greater discretionary powers to refuse petitions. It has become standard practice for US visa applicants to over-document with their submission, and to build in additional time to allow for protracted processing and decision-making.

Biden inherits a divided nation. He will undoubtedly face pushback and potential legal challenges from states or groups that oppose changes to Trump’s immigration policies”

The effect has been to purposefully hamper migration and deter employers from pursuing US-based opportunities through the deployment of key talent on assignment or longer-term transfer.

Yet the appeal of doing business with and in the US remains, bringing benefits both to the foreign companies and the US economy. For international businesses, Biden’s victory can be seen as a signal to review mobility plans and reconsider overseas assignments and transfers to the US as viable prospects.

Undoing the damage

Reversing restrictive policies and labyrinthine processing will be the only way to reinvigorate US economic migration. Biden has indicated his initial focus for immigration would be to undo many of Trump’s biggest, flagship changes, with a view to taking immigration policy back to the Obama-era.

On immigration alone, he has proposed more than a dozen initiatives to complete within 100 days of taking office, although this is being hampered by Trump’s continued refusal to acknowledge the election result.

Under the Biden plan, resources are expected to be refocused towards adjudication and away from enforcement, re-opening the pipeline for visa applications.

Not only will the restrictions Trump put in place on current visa categories be reversed, but there is also likely to be a renewed interest in creating a start-up visa category given that similar models in Canada, Australia and New Zealand have succeeded in creating jobs.

Some changes may be relatively simple to effect, while others are likely to take longer to implement due to procedural and political barriers.

Biden inherits a divided nation. He will undoubtedly face pushback and potential legal challenges from states or groups that oppose changes to Trump’s immigration policies.

Biden’s ability to deliver reform will also be determined by whether or not the Democrats secure the Senate. This will not be decided until two run-off elections are held in Georgia in January. If Republicans maintain control of the Senate under a split Congress scenario, he will likely be forced to act alone through executive actions.

In administrative terms, the petition processing backlog with US Citizenship and Immigration Services (USCIS) and other immigration authorities that built up during Trump’s tenure will also take time and investment to work through. And US immigration agencies have seen their authority and discretionary powers swell under Trump; rolling back on this position is unlikely to be straightforward in bureaucratic terms. Remember also that there are a lot of pressing issues on the agenda besides immigration.

A new chapter

The likelihood is that while immigration reform will come, we should not expect the same pace of change as under Trump.

Companies will be relieved if a Biden administration returns USCIS policies to those of the Obama administration, and it seems there is a reasonable chance that will happen.  Even if legislation and backlogs take time to become current, we will see an immediate difference in tone and anti-immigration rhetoric.

For companies and workers, Biden’s American Dream will be much more inclusive and will virtually be the direct opposite of Trump’s zero-immigration approach.

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Nita Upadhye

About Nita Upadhye

Nita Upadhye is the founder and principal attorney at London-based US immigration law firm, NNU Immigration.  Nita is a specialist in US business immigration, acting for leading corporations and professionals, entrepreneurs, artists, actors and athletes in US immigration matters.
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