Joe Biden officially becomes President of United States

Chris Richardson
January 20, 2021

On January 21st, Joe Biden and Kamala Harris will be sworn in as President. Below are some changes we can expect that might affect EB-3 Unskilled Visa applicants:

End of all Employment-Based Visa In-Person Interviews (only in extreme circumstances): Prior to the Trump Administration, it was rare that for an EB-3 Visa case to be interviewed. Those cases were all adjudicated without an interview. You will see this happening more even prior to Trump leaving office. I think even before Trump leaves, we're going to see a lot more approvals across the board.

End of Automatic Denials: Trump wrote an internal USCIS Policy memorandum allowing for automatic visa denials without the opportunity to “cure” an issue. That memorandum will be rescinded on day one and USCIS will be required to issue RFEs and NOIDs prior to any denials.

Administration Processing Case Denial Clearances: Any cases from Consular to USCIS that are currently pending administrative review will be reviewed and resolved as part of a push by USCIS to clear its backlog of cases. USCIS will attempt to hire additional workers and clear up all prior backlogs for Family-Based and Employment-Based Cases.

Recapture Previously Unused Green Card Numbers: There is a theory that any unused preference immigrant numbers from FY92 to the present can be recaptured. The 1990 bill seems to imply that all visa numbers had to be used, but no one has used it thus far. This could recapture a million unused Green Cards from prior years and ensure cases are current for a very long time. There would be no need to pass any legislation on this because Congress already passed this.

No Inclusion of Dependents and Spouses Against Cap: Currently, dependents and spouses are included in any cap along with the main applicant so instead of 10,000 EB-3 Unskilled Visas being available, it's really just 5,000. There is significant debate within Biden world about whether the 1990 bill meant to include dependents and spouses against the visa cap. The bill is completely silent on the matter. Several activists and lawyers are pushing for State and USCIS to simply promulgate a rule stating dependents and spouses are not in the cap and let it be challenged in Court. Several others though do not believe this will be successful because neither Congress nor the President has previously challenged this definition before and therefore since no one had any issues previously with the definition why do they have it now?
Emphasis on Employers And Not Visa Applicants: USCIS under a Biden Administration will focus more on employers (Petitioners) and less on individual visa applicants. This means that should an employer have the issue, that the individual visa applicant will not be punished or threatened with visa revocation.

Rescind Trump’s Travel Bans, Public Charge, and Healthcare Mandates: Biden will rescind the public charge (I-944) and Muslim ban on day one. The COVID19 bans will take a little bit more time because COVID19 is still ongoing, international travel is already down, and several countries will not even allow Americans. The bigger issue is also that, in terms of Consular, many countries are not permitting Visa Officers to return given that America is a “high risk COVID19” zone so even if we didn’t have a COVID19 ban, its likely that the wait-times for visa interviews at Consulates and Embassies will be significant for FY2021.

Return of INFOPASS: Prior to the Trump Administration, if a visa applicant had an issue (error on their EAD card or did not receive their Green Card), they could go visit a USCIS office and talk to a USCIS adjudicator via INFOPASS. That will likely return and with teeth and authority. Level 2 and 3 USCIS adjudicators will take part.

Congressional Bill: If an immigration bill does happen, it will likely focus on (1) doubling or tripling the visa numbers; (2) ending the diversity lottery; (3) protecting DACA recipients; and (4) more funding for the Trump wall.

Trusted Employer Program: This will allow that employers with a track record of compliance with USCIS will not need to continually submit voluminous information (including company description, organizational structure, finances) for each new petition. Think of this as Global Entry or TSA PreCheck.

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