Presented by attorney Jacob Muklewicz on Jan. 28, 2021 - Parsons Behle & Latimer in partnership with World Trade Center Utah

1. parsonsbehle.com
POTENTIAL CHANGES TO
2021 U.S. IMMIGRATION POLICY
AND THEIR BUSINESS IMPACTS
JANUARY 28, 2021, 9:00-10:00 AM MST

2. Presenter:
Jacob T. Muklewicz
Shareholder
801.536.6896
jmuklewicz@parsonsbehle.com
Jason Castor
Chief Business
Development Officer
801.536.6816
jcastor@parsonsbehle.com
Moderator:

3. Things are changing rapidly. We are working extremely hard to keep up
with all that is happening. This webinar is based on available information
as of Jan. 28, 2021, but everyone must understand that this webinar is not
a substitute for legal advice. If there are questions about the information
contained in the presentation and how it applies to your business, then you
should contact your legal counsel. This presentation is not intended and
will not serve as a substitute for legal counsel on these issues. Given the
complexity and rapidly changing landscape, you must consult with your
legal counsel on these issues.
Legal Disclaimer

4. Polish Proverb
“Aby mierzyć drogę przyszłą,
Trzeba wiedzieć, skąd się przyszło”.
“In order to gauge the road ahead,
One must know from whence he has come.”
Cyprian Kamil Norwid

5. Agenda
U.S. Business Immigration Policy under Former
President Trump
U.S. Business Immigration Policy under Current
President Biden

6. U.S. Business Immigration Policy under Former
President Trump
 Buy American and Hire American (Executive Order 13788 of April 18, 2017)
o Sec. 2. Policy. It shall be the policy of the executive branch to buy American and hire
American.
a) Buy American Laws. In order to promote economic and national security and to help
stimulate economic growth, create good jobs at decent wages, strengthen our middle
class, and support the American manufacturing and defense industrial bases, it shall be
the policy of the executive branch to maximize, consistent with law, through terms and
conditions of Federal financial assistance awards and Federal procurements, the use of
goods, products, and materials produced in the United States.
b) Hire American. In order to create higher wages and employment rates for workers in the
United States, and to protect their economic interests, it shall be the policy of the
executive branch to rigorously enforce and administer the laws governing entry
into the United States of workers from abroad, including section 212(a)(5) of the
Immigration and Nationality Act (8 U.S.C. 1182(a)(5)). (Emphasis added.)

7. U.S. Citizenship and Immigration Services’ Policies
under Former President Trump
 Policies and Regulations Protecting U.S. Workers
o Issued policy guidance related to fees that certain H-1B petitioners must pay that ultimately help to
train U.S. workers.
o Issued policy guidance instructing officers to apply the same level of scrutiny to both initial and
extension requests for certain employment-based visa programs, emphasizing that the burden of
proof for an immigration benefit request lies with the petitioner.
o Issued policy guidance related to petitions for H-1B workers who will work at third-party worksites.
o Issued policy guidance clarifying that a proxy vote must be irrevocable to establish the requisite
control of a company in an L-1 visa petition.
o Clarified calculation guidelines in a policy memorandum for the L-1 one-year foreign employment
requirement to ensure beneficiaries spend at least one year overseas.
o Finalized a rule making simple and smart changes to the H-1B cap selection process to increase
the chances of selection for beneficiaries who have earned a master’s or higher degree from a
U.S. institution of higher education.

8. U.S. Citizenship and Immigration Services’ Policies under
Former President Trump
 Fraud Detection and Prevention in Employment-Based Visa Programs
o Announced that USCIS and the Department of Justice signed a Memorandum of
Understanding that expanded their collaboration to better detect and eliminate fraud,
abuse and discrimination by employers bringing foreign workers to the United States.
o Created H-1B and H-2B fraud reporting tip lines and strengthened information
sharing with the Departments of State, Labor, and Justice to streamline and improve
new and existing processes in our immigration system.
o Enhanced our targeted site visit program to ensure that H-1B and L-1 employers and
nonimmigrant workers comply with the terms of their approved petitions.

9. U.S. Citizenship and Immigration Services’ Policies
under Former President Trump
 Transparency of Employment-Based Visa Programs
o Created a webpage devoted to the Buy American and Hire American
executive order providing additional data on various employment-based
immigration programs and statistics on employment authorization documents
provided to foreign nationals by classification and statutory eligibility.
o Created the H-1B Employer Data Hub to provide information to the public on
employers petitioning for H-1B workers.
U.S. Citizenship and Immigration Services, “USCIS Commemorates
Second Anniversary of Buy American and Hire American Executive
Order,” (April 18, 2019)

10. Former President Trump’s Presidential
Proclamations in Response to COVID-19
 Proclamation 10014 of April 22, 2020
o Suspends for 60 days entry of any individual seeking to enter the U.S. as an
immigrant who:
• Is outside the United States on the effective date of the proclamation;
• Does not have a valid immigrant visa on the effective date; and
• Does not have a valid official travel document (such as a transportation letter, boarding
foil, or advance parole document) on the effective date, or issued on any date thereafter
that permits travel to the United States to seek entry or admission.

11. Former President Trump’s Presidential
Proclamations in Response to COVID-19
 Proclamation 10014 of April 22, 2020
o Exemptions
• Lawful permanent residents (LPR)
• Individuals, and their spouses or children, seeking to enter the U.S. on an immigrant visa
as a physician, nurse, or other healthcare professional; to perform medical research or
other research intended to combat the spread of COVID-19; or to perform work essential
to combating, recovering from, or otherwise alleviating the effects of the COVID-19
outbreak, (as determined by the Secretaries of State and Department of Homeland
Security (DHS), or their respective designees)
• Individuals applying for a visa to enter the U.S. pursuant to the EB-5 immigrant investor
visa program
• Spouses of U.S. citizens
• Children of U.S. citizens under the age of 21 and prospective adoptees seeking to enter
on an IR-4 or IH-4 visa

12. Former President Trump’s Presidential
Proclamations in Response to COVID-19
 Proclamation 10014 of April 22, 2020
o Exemptions
• Individuals who would further important U.S. law enforcement objectives (as
determined by the Secretaries of DHS and State based on the recommendation of the
Attorney General (AG), or their respective designees)
• Members of the U.S. Armed Forces and their spouses and children
• Individuals and their spouses or children eligible for Special Immigrant Visas as an
Afghan or Iraqi translator/interpreter or U.S. Government Employee (SI or SQ
classification)
• Individuals whose entry would be in the national interest (as determined by the
Secretaries of State and DHS, or their respective designees).

13. Former President Trump’s Presidential
Proclamations in Response to COVID-19
 Proclamation 10052 of June 22, 2020
o Extends enforcement of Presidential Proclamation 10014 trough December
31, 2020
o Suspends the issuance of visas for those seeking entry pursuant to a(n):
• H-1B visa and any foreign national accompanying or following to join them;
• H-2B visa and any foreign national accompanying or following to join them;
• J visa, to the extent the foreign national is participating in an intern, trainee, teacher, camp
counselor, au pair, or summer work travel program, and any foreign national
accompanying or following to join them; and
• L visa, and any foreign national accompanying or following to join them.

14. Former President Trump’s Presidential
Proclamations in Response to COVID-19
 Proclamation 10052 of June 22, 2020
o Applies to individuals identified above if they:
• Are outside the United States on the effective date of the Proclamation;
• Do not have a nonimmigrant visa in one of the categories that is now suspended on which
• they are seeking entry1, that is valid on the effective date of the Proclamation; and
• Do not have an official travel document other than a visa (such as a transportation letter,
• boarding foil, or advance parole document), valid on the effective date of the Proclamation
• or issued thereafter permitting the individual to be admitted to the United States.

15. Former President Trump’s Presidential
Proclamations in Response to COVID-19
Proclamation 10131 of December 31, 2020
o Extends enforcement of Presidential Proclamations 10014 and 10052
through March 31, 2021

16. Department of Labor’s Interim Final Interim Rule
Increasing Prevailing Wage Levels
 On January 14, 2021, the U.S. Department of Labor (DOL) published a
final rule entitled, “Strengthening Wage Protections for the Temporary and
Permanent Employment of Certain Aliens in the United States,” that would
have amended existing regulations governing the prevailing wage
determination process for permanent labor certifications and labor
condition applications (LCA).
 The rule, initially published on October 8, 2020 as an Interim Final Rule
(IFR) with an immediate effective date, was blocked by federal courts for
failure to follow the Administrative Procedure Act’s (APA) required notice
and comment procedures.

17. Department of Labor’s Interim Final Interim Rule
Increasing Prevailing Wage Levels
 The final rule would have dramatically changed the computation of prevailing
wage levels, resulting in significantly higher prevailing wages for all occupations
and all wage levels in the Occupational Employment Statistics (OES) wage
survey administered by the Bureau of Labor Statistics.
 The new prevailing wage level percentiles would have been increased as follows:
o Level I Wage: 35th percentile of the OES wage distribution (currently 17th percentile)
o Level II Wage: 53rd percentile of the OES wage distribution (currently 34th percentile)
o Level III Wage: 72nd percentile of the OES wage distribution (currently 50th percentile)
o Level IV Wage: 90th percentile of the OES wage distribution (currently 67th percentile)

18. U.S. Business Immigration Policy under Current
President Biden
 Made In America Executive Order
o Will ensure that the federal government is investing taxpayer dollars in
American businesses—both small and large.
o Will help create well-paid, union jobs, and build our economy back better so
that everybody has a fair shot at the middle class.
o Will buy from all of America—including minority entrepreneurs and businesses
in every region in our country.
o Will support the manufacturing capabilities and technology needed to build a
clean energy future and strengthen our national security
o Will give our workers and companies the tools they need to compete globally
for decades to come.

19. President Biden’s Made In America Executive Order
 Directs agencies to close current loopholes in how domestic content is measured and increase
domestic content requirements.
 Appoints a new senior leader in the Executive Office of the President in charge of the
government’s Made-in-America policy approach.
 Increases oversight of potential waivers to domestic preference laws.
 Connects new businesses to contracting opportunities by requiring active use of supplier scouting
by agencies.
 Reiterates the President’s strong support for the Jones Act (mandating that only U.S.-flag vessels
carry cargo between U.S. ports).
 Directs a cross-agency review of all domestic preferences.
 Supports America’s Workers through Federal Purchasing.
https://www.whitehouse.gov/briefing-room/statements-releases/2021/01/25/president-biden-to-sign-
executive-order-strengthening-buy-american-provisions-ensuring-future-of-america-is-made-in-
america-by-all-of-americas-workers/

20. U.S. Citizenship and Immigration Services’ Policies
under President Biden
 On January 20, 2021, President Biden sent to Congress the U.S.
Citizenship Act of 2021, revealing likely changes to USCIS policies
under Former President Trump’s Administration.
o Create an earned roadmap to citizenship for undocumented individuals.
• Allows undocumented individuals to apply for temporary legal status, with the ability to
apply for green cards after five years if they pass criminal and national security
background checks and pay their taxes.
• Dreamers, TPS holders, and immigrant farmworkers who meet specific requirements are
eligible for green cards immediately under the legislation.
• After three years, all green card holders who pass additional background checks and
demonstrate knowledge of English and U.S. civics can apply to become citizens.

21. U.S. Citizenship and Immigration Services’ Policies
under President Biden
 Keep families together.
o Reforms the family-based immigration system by clearing backlogs,
recapturing unused visas, eliminating lengthy wait times, and increasing per-
country visa caps.
o Eliminates the so-called “3 and 10-year bars,” and other provisions that keep
families apart.
 Embrace diversity.
o Includes the NO BAN Act prohibiting discrimination based on religion and
limits Presidential authority to issue future bans.
o Increases Diversity Visas to 80,000 from 55,000.

22. U.S. Citizenship and Immigration Services’ Policies
under President Biden
 Promote immigrant and refugee integration and citizenship.
o Provides new funding to state and local governments, private organizations, educational institutions, community-
based organizations, and not-for-profit organizations to expand programs to promote integration and inclusion,
increase English-language instruction, and provides assistance to individuals seeking to become citizens.
 Grow our economy.
o Clears employment-based visa backlogs, recaptures unused visas, reduces lengthy wait times, and eliminates
per-country visa caps.
o Makes it easier for graduates of U.S. universities with advanced STEM degrees to stay in the United States
(green cards for STEM PhD recipients upon graduation).
o Improves access to green cards for workers in lower wage sectors.
o Eliminates other unnecessary hurdles for employment-based green cards.
o Provides dependents of H-1B visa holders work authorization, and children are prevented from “aging out” of the
system.
o Creates a pilot program to stimulate regional economic development.
o Gives DHS the authority to adjust green cards based on macroeconomic conditions.
o Incentivizes higher wages for non-immigrant, high-skilled visas to prevent unfair competition with American
workers.

23. U.S. Citizenship and Immigration Services’ Policies
under President Biden
 Protect workers from exploitation and improve the employment
verification process.
o Requires that DHS and DOL establish a commission involving labor,
employer, and civil rights organizations to make recommendations for
improving the employment verification process.
o Workers who suffer serious labor violations and cooperate with worker
protection agencies will be granted greater access to U visa relief.
o Protects workers who are victims of workplace retaliation from deportation in
order to allow labor agencies to interview these workers.
o Protects migrant and seasonal workers.
o Increases penalties for employers who violate labor laws.

24. Biden Administration Executive Order Promoting
COVID-19 Safety in Domestic and International Travel
 Former President Trump’s Presidential Proclamations 10014 and 10052 (immigrant visa and
nonimmigrant visa bans), as well as the country specific COVID-19 related travel bans, remain in
place.
 It is unclear if the Biden administration will lift the restrictions, despite Presidential Proclamation 10138
issued on January 18, 2021 by Former President Trump terminating COVID/health-related travel
restrictions on entry of certain travelers from the Schengen area, U.K., Ireland, and Brazil and leaving
the restrictions active for China and Iran.
 As of January 22, 2021, U.S. Customs and Border Protection confirmed it had not received guidance
on the travel bans being lifted for intending travelers from the Schengen area, U.K., Ireland and Brazil.
 If no further action is taken by the Biden administration, Presidential Proclamation 10138 will have
taken effect on January 26, 2021 thus terminating COVID/health-related travel restrictions on entry of
certain travelers from the Schengen area, U.K., Ireland, and Brazil.
 However, in a January 18, 2021 tweet, Press Secretary Jen Psaki indicated that the Biden
Administration does not intend to lift the restrictions on January 26, 2021 and plans to strengthen
public health measures around international travel.

25. Department of Labor’s Final Interim Rule to Increase Prevailing
Wage Levels Under President Biden’s Administration
 On January 20, 2021, White House Chief of Staff Ron Klain issued a memorandum
regarding review of pending regulatory actions which directs, in part, that:
1. All rules pending at the Federal Register that have not been published must be immediately
withdrawn, and
2. Agencies must consider postponing the effective dates for regulations that have been published,
but not yet taken effect, for 60 days from the date of this memorandum.
 Consequently, the modified version of the Strengthening the H-1B Nonimmigrant Visa
Classification Program Final Rule sent to the Federal Register on January 15, 2021 but
not yet published, will be withdrawn.
 In addition, any final rule that has already published, but not yet taken effect, may upon
further agency action be postponed until March 21, 2021, including the H-1B Wage
Selection Final Rule, which would eliminate the random H-1B lottery and replace it with a
system wherein employers who offer higher salaries or wages are selected for H-1B visa
processing.

26. Comparisons and Contrasts Between
Trump’s and Biden’s U.S. Immigration Policies
 Former President Trump protected American workers and their wages
by strictly enforcing existing immigration laws and increasing the
costs for U.S. companies filing immigration applications for foreign
workers.
 Although President Biden’s immigration bill appears to be more
friendly to immigrants, most provisions focus on family reunification,
diversity, legalization of persons currently out of status, and protecting
workers (including foreign workers without legal status) from
exploitation.

27. Comparisons and Contrasts Between
Trump’s and Biden’s U.S. Immigration Policies
 Although President Biden has issued Executive Orders and
Presidential Proclamations repealing many of Former President
Trump’s immigration policies (excluding non-U.S. citizens from the
census reapportionment count; banning travel to the U.S. by nationals
of certain Muslim countries; funding and building a wall along the U.S.
– Mexican border; and rescinding Deferred Action for Childhood
Arrivals (DACA)), President Biden has not rescinded Presidential
Proclamations 10014 and 10052 (immigrant and nonimmigrant visa
restrictions through March 31, 2021) in order to limit the spread of
COVID-19.

28. Conclusions
 Withdrawing the regulation that would have increased prevailing wage levels
should keep the H-1B visa program affordable for U.S. employers; however, it
remains uncertain whether USCIS will withdraw the regulation eliminating the
annual H-1B lottery and replacing it with a system where annual H-1B visa
numbers are allotted to the employers who pay the highest salaries or wages.
 Although President Biden’s proposed immigration bill offers paths towards
legalization and citizenship for many without lawful visa status, it currently lacks
provisions that would increase the annual cap for H-1B visas.
 If the COVID-19 pandemic persists causing personnel at USCIS and other federal
agencies to stay at home in quarantine, and if President Biden’s immigration
policies focus more on legalization efforts for those without status, then
government processing times for business- and employment-based cases will
likely continue to increase.

29. Q & A

30. Presenter:
Jacob T. Muklewicz
Shareholder
801.536.6896
jmuklewicz@parsonsbehle.com
Jason Castor
Chief Business
Development Officer
801.536.6816
jcastor@parsonsbehle.com
Moderator: