Dear Sophie: What’s ahead for US immigration in 2021?

Here’s another edition of “Dear Sophie,” the advice column that answers immigration-related questions about working at technology companies.

“Your questions are vital to the spread of knowledge that allows people all over the world to rise above borders and pursue their dreams,” says Sophie Alcorn, a Silicon Valley immigration attorney. “Whether you’re in people ops, a founder or seeking a job in Silicon Valley, I would love to answer your questions in my next column.”

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Dear Sophie:

I’m in people ops and our team is trying to plan ahead for immigration in the new year and beyond.

What’s ahead for U.S. visas and green cards?

—Ready in Redwood City

Dear Ready:

Ha! I love it. Well, although I don’t have a crystal ball (yet), there’s a lot of opportunity, predictability and security that we can anticipate for immigration ahead.

Our U.S. immigration policy will experience a tremendous growth spurt in the coming months as Trump completes his regulatory agenda, litigation culminates and Biden takes office on January 20. The changes I’m tracking will incentivize U.S. companies to hire and retain top global talent and will make it easier for them to do so. There are also going to be increased opportunities for families and founders, strengthening the U.S. and Silicon Valley tech startup communities.

We can anticipate that the first 100 days of President-elect Biden’s term will focus on undoing many Trump-era immigration changes. Some of this will happen by executive order (although probably not tweets!) and some of it will be required to follow the procedures set forth in law through the Administrative Procedure Act (APA). The APA governs the process by which federal agencies develop and issue regulations.

Following procedures to rescind or amend rules already put into place — even on an expedited basis — takes time to allow for adequate review and public comments. We can anticipate that due process will unfold to effectuate these changes.

I’m looking forward to the lifting of travel restrictions, which I anticipate happening sometime in 2021 based on political changes and improvements in COVID based on the vaccine. I’m also looking forward to U.S. Embassies and Consulates coming back fully online for visa and green card interviews in the coming months.

In the short term, it’s safest to still take a conservative approach to immigration and international travel. We continue to recommend that employers do what they can to enable individuals to remain in the U.S. by either extending their existing visa or switching to another visa status through the “change of status” process, instead of requiring their employees to go through “consular processing” aboard.

The flurry of new rules proposed during the past few months by the Trump administration have primarily centered around H-1B visas and the process for obtaining them. To learn more about these recent and proposed changes, check out the previous Dear Sophie columns on the higher wage classifications and new H-1B requirements imposed by the U.S. Department of Labor and the Department of Homeland Security, respectively, and the end of the random H-1B lottery.

Despite these proposals, we are recommending that everyone proceed with preparing for the H-1B lottery as usual. We are expecting the registration period for H-1B candidates to be open from March 1 through March 20 again in the coming year, with the U.S. Citizenship and Immigration Services (USCIS) notifying employers whose candidates have been selected to apply for an H-1B by March 31, as they did last year. Under this process, employers will have until June 30 to file an H-1B petition on behalf of the candidate. Check out my podcasts on how to put together a strong H-1B petition and how to navigate the H-1B season in 2021.

For budgeting, we’re expecting USCIS to implement higher fees sometime next year. USCIS was historically funded through filing fees, which meant whenever the federal government shut down due to a budget impasse in Congress, USCIS continued to operate. That changed in 2020 when Congress bailed out USCIS to avoid furloughs. Earlier this year, USCIS finalized a new fee structure that was set to take effect on Oct. 2, but a federal court stopped the fee increases from going into effect. The litigation remains ongoing. Separately, the premium processing fee increased from $1,440 to $2,500 in October.

Keep an eye on the runoff election on Jan. 5 in Georgia for the state’s two U.S. Senate seats. The outcome of that runoff election will determine which party controls the Senate. It will also indicate whether Biden has a chance of implementing the rest of his immigration platform through Congressional legislation or if he will have to make changes to immigration through executive orders and proclamations, such as fully restoring the Deferred Action for Childhood Arrivals (DACA) program and providing a path to citizenship for Dreamers, creating a startup visa and eliminating the per-country cap on green cards, among other things. If Democrats gain a Senate majority, it can allow for additional immigration changes such as targeting the number of employment-based green cards to U.S. labor market conditions.

There’s much to look forward to and many new opportunities ahead.

Happy holidays!

Sophie

We launched our first online immigration course, Extraordinary Ability Bootcamp. Many of our client successes stem from options such as the O-1A nonimmigrant visa, as well as the EB-1A extraordinary ability green card and the EB-2 NIW green card.

Have a question? Ask it here. We reserve the right to edit your submission for clarity and/or space. The information provided in “Dear Sophie” is general information and not legal advice. For more information on the limitations of “Dear Sophie,” please view our full disclaimer here. You can contact Sophie directly at Alcorn Immigration Law.

Sophie’s podcast, Immigration Law for Tech Startups, is available on all major podcast platforms. If you’d like to be a guest, she’s accepting applications!