President Biden has some opportunities to take action to safeguard potential changes to U.S. immigration programs. Among the options are the extension of work permits for renewals and finalizing proposed changes to the H-1B visa program. Finalizing existing proposed immigration policy would need to be introduced quickly to protect these benefits from future potential changes.

Currently, there is a proposed rule modernizing the H-1B temporary visa program for specialty occupations. The extension of automatic work authorization is a proposed rule now but could be made permanent. There are some outstanding proposed rules that could be rescinded, some of which were proposed in Trump’s first presidency.

One outstanding proposed rule is limiting when immigration judges can postpone hearing and filing dates. Under this rule, judges must show a particular and justifiable need for the postponement. Continuance of matters would be barred if a noncitizen is unlikely to gain immigration relief, or if the postponement would not impact the likely outcome of the case. As a result, cases could be closed prematurely.

A second group of proposed rules from the previous H-1B modernization policy could be withdrawn or submitted separately. Among them are the ‘cap gap’, deference of decisions, and expanding the availability of the cap exemption for nonprofit and governmental research organizations. Submitted as a group, passing the proposed rules is unlikely prior to the end of Biden’s administration. However, if submitted separately, some could be finalized.

Students studying at qualifying U.S. universities with an F-1 visa often have a gap between their student visa expiration and the approval of an employment-based visa. This proposed rule automatically extends the visa to cover the gap in time. This is one element that could be finalized independently.

Deference is another element of the proposed rule. In this rule, adjudicators would be required to follow previous case results where the underlying facts of the case are the same. Therefore, if a previous case with the same underlying facts was approved, the similar case should also be approved. This proposed rule has wide acceptance.

A temporary rule issued in April 2024 automatically extends work authorization for renewals for qualifying individuals from 180 days to 540 days. This rule directly addresses the backlog and processing delays. Under the incoming administration, further delays are like, based on Trump’s previous administration. An estimated 800,000 individuals could be at risk of losing their employment authorization, given the growing backlog of renewal submission. This rule is set to expire October 15, 2025.

As always, ILBSG actively monitors ongoing news as it relates to U.S. immigration policy. If you have questions about any U.S. immigration issue, contact us. We work with our clients to ensure they get the right advice.

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