100 Days of the Biden Administration, Part I: Key Labor and Employment Policy Developments

April 30, 2021, marked President Joe Biden’s 100th day in office, and his administration has wasted little time advancing its policy priorities. At this moment, the administration is focusing most of its attention on repealing much of the policy accomplishments of the previous administration but can be expected to advance its own proposals in short time. Additionally, Democrats in the U.S. House of Representatives are looking for ways around the U.S. Senate’s legislative filibuster in order to advance their ambitious legislative agenda. Below is a very brief outline of the major labor and employment legislative actions of President Biden’s first 100 days.

U.S. Embassy in Moscow Announces Significant Reduction of Consular Services

U.S. Embassy Moscow recently announced plans to reduce its consular workforce by 75 percent and significantly reduce its consular services. The announcement comes in response to the Russian government’s move to ban the U.S. Embassy “from employing foreign nationals in any capacity,” actions taken in retaliation to new U.S. sanctions imposed over Russia’s alleged interference in the 2020 U.S. presidential election, and the country’s involvement in the computer hack of top U.S. government agencies.

Biden Administration Extends U.S.-Mexico and U.S.-Canada COVID-19 Border Restrictions Through May 21, 2021

On April 19, 2021, the Biden administration extended travel restrictions along the land ports of entry between the United States and Canada and the United States and Mexico through May 21, 2021. The border restrictions were set to expire on April 21, 2021. The restrictions, which have been in effect since March 21, 2020, specifically prohibit all “non-essential” travel at these land ports of entry to prevent the spread of COVID-19.

Delays Persist at U.S. Consulates Worldwide, Even in Wake of Biden Administration’s Lifting of Various Visa Suspensions

On March 31, 2021, the Trump administration’s Proclamation 10052, which had suspended the entry of certain H-1B, H-2B, J, and L nonimmigrant visa holders and their dependents to the United States, expired. In addition, on February 24, 2021, the Biden administration lifted Proclamation 10014, which had suspended the entry of certain immigrant visa holders through March 31, 2021. Despite these policy developments, applicants for nonimmigrant work visas and immigrant visas can still expect continued delays in obtaining visas due to COVID-19–related issues.

USCIS to Suspend Biometrics Requirement for Certain Nonimmigrant Dependent Applications

On May 3, 2021, U.S. Citizenship and Immigration Services’ (USCIS) acting associate director of the Service Center Operations Directorate, Connie L. Nolan, indicated in a court filing that USCIS is finalizing a policy that will temporarily suspend the requirement to submit biometrics for certain individuals filing Form I-539, Application to Extend/Change Nonimmigrant Status.

COVID-19 and the Form I-9: Preparing for the End of Remote Document Verification

Early in the COVID-19 pandemic, the U.S. Department of Homeland Security (DHS) authorized U.S. employers with employees who are taking physical proximity precautions to remotely inspect identity and work authorization documents when completing Form I-9, Employment Eligibility Verification, rather than review original documents in person.

Biden Administration Issues Restrictions on Travel From India

On April 30, 2021, the Biden administration issued a proclamation that implements restrictions for travelers from India, due to concerns regarding COVID-19. Pursuant to the proclamation, noncitizens who have been physically present in India within 14 days of travel to the United States will be barred entry, unless eligible for an exception. The restrictions are scheduled to take effect on May 4, 2021, at 12:01 am eastern daylight time.

USCIS Reinstates ‘Prior Deference’ Policy in Adjudicating Extensions of Visa Matters Involving Same Parties and Facts

On April 27, 2021, U.S. Citizenship and Immigration Services (USCIS) issued updated policy guidance “instructing officers to give deference to prior determinations when adjudicating extension requests involving the same parties and facts unless there was a material error, material change, or new material facts.” This USCIS policy update reverts back to a long-standing policy originally established in 2004.

Navigating the Form I-9 for TPS and DED: Complex Verification Requirements

Over the past three months, the Biden administration has expanded immigration benefits for foreign nationals on humanitarian grounds. Temporary Protected Status (TPS) and Deferred Enforced Departure (DED) are two such humanitarian benefits that permit certain foreign nationals to live and work in the United States with government-issued employment authorization documents.

Biden Administration’s Current U.S. Travel Restrictions and Revised National Interest Exception Criteria

The ongoing COVID-19 pandemic has resulted in numerous presidential proclamations restricting travel and entry into the United States. Likewise, since the pandemic began, the criteria for “national interest exceptions” (NIEs) has also evolved. On March 2, 2021, the U.S. Department of State issued updated criteria for NIEs relating to certain travelers from the Schengen Area, United Kingdom, and Ireland. Given the frequency of the changes, it can be difficult to track the current state of these matters. The following information is a summary of the latest updates with regard to U.S. travel restrictions.

U.S./Mexico/Canada COVID-19 Travel Update: Biden Administration Extends Border Restrictions Through April 21, 2021

On March 18, 2021, the Biden administration extended ongoing travel restrictions along the United States-Canada and United States-Mexico land ports of entry through April 21, 2021. The restrictions, which were previously set to expire on March 21, 2021, prohibit all “non-essential” travel from entering the United States to prevent the spread of COVID-19. These restrictions have been in effect since March 21, 2020.

USCIS Completes FY 2022 H-1B Selection Process

On March 30, 2021, U.S. Citizenship and Immigration Services (USCIS) announced that it had completed the initial H-1B regular cap and master’s cap selection process for fiscal year (FY) 2022. This is the second year that USCIS has used an electronic preregistration system to conduct the random selection lottery. According to the agency’s press release, USCIS has sent notifications to registrant employers and their representatives about selection results.

USCIS Provides Filing Flexibility for International Student OPT Work Authorization Applications Affected by Service Delays

On February 26, 2021, U.S. Citizenship and Immigration Services (USCIS) announced that it was offering additional flexibility for international students affected by the delayed issuance of receipt notices for Form I-765, Application for Employment Authorization. USCIS had previously acknowledged that it was “experiencing delays in issuing receipt notices for some applications and petitions filed at a USCIS lockbox facility,” and, in particular, “significant delays” for Form I-765 applications relating to F-1 students.

USCIS Announces Deadline to Download E-Verify Data

Pursuant to the National Archives and Records Administration (NARA) records retention and disposal schedule (N 1-55-08-7), U.S. Citizenship and Immigration Services (USCIS) annually purges E-Verify data that is more than 10 years old. According to USCIS, as of May 14, 2021, employers will no longer have access to E-Verify records that were created on or before December 31, 2010.

Biden Administration Introduces ‘U.S. Citizenship Act’ Immigration Bill in Congress

On February 18, 2021, the Biden administration formally introduced a new immigration bill in Congress—the U.S. Citizenship Act of 2021. The bill, marshaled by Representative Linda Sanchez (D-CA) and Senator Robert Menendez (D-NJ), includes provisions that would impact all aspects of what the administration considers a broken immigration system.

The Top 10 Labor and Employment Issues Keeping Retailers Up at Night in 2021

Now that the inauguration has passed and the Biden administration has begun its work, it is a good time for retailers to take stock of the labor and employment issues that are likely to assume prominence in 2021, and to consider preparing to meet the challenges each of these issues pose. In no particular order, below are the top 10 issues that are likely to keep retail employers up at night in 2021.

FY2022 H-1B Cap Update: USCIS Confirms Registration Details, Delays Wage-Based Selection Process

U.S. Citizenship and Immigration Services (USCIS) will begin accepting new H-1B petitions subject to the annual quota for fiscal year (FY) 2022 on or shortly after April 1, 2021. USCIS has confirmed it will use the same preregistration system introduced for last year’s lottery and will accept registrations starting on March 9, 2021. The registration window will close at noon eastern standard time (EST) on March 25, 2021. Importantly, the U.S. Department of Homeland Security (DHS) has confirmed it will delay the effective date of the new H-1B selection final rule until December 31, 2021.

President Biden Revokes ‘Buy American and Hire American’ Executive Order

On January 25, 2021, President Joe Biden signed Executive Order (EO) 14005 entitled “Ensuring the Future Is Made in All of America by All of America’s Workers,” which directs federal government agencies to “maximize the use of goods, products, and materials produced in, and services offered in, the United States.” While this order directs all agencies to follow this policy via the federal procurement and budgetary process, it also revoked the “Buy American and Hire American” executive order (EO 13788), which President Trump signed on April 18, 2017.

DHS Withdraws Proposed Rule to Rescind H-4 Work Authorization Program

On January 25, 2021, the U.S. Department of Homeland Security (DHS) withdrew its proposed rule that sought to eliminate the H-4 employment authorization document (EAD) program for eligible spouses of H-1B workers. The now-withdrawn rule, “Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization,” was proposed and submitted to the Office of Information and Regulatory Affairs (OIRA) on February 20, 2019, largely in response to President Trump’s Buy American and Hire American Executive Order, which had emphasized the former administration’s focus on protecting American workers.

DOL Delays Implementation of Updated OES Wage Rule

On February 1, 2021, the U.S. Department of Labor (DOL) formally proposed delaying the implementation of its final rule, entitled “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States.” This rule was scheduled to go into effect on March 15, 2021. The rule, which was published during the last days of the Trump administration, was an updated version of the rule originally published as an interim final rule on October 8, 2020.

Biden Administration Reinstates COVID-19 Travel Restrictions for Europe and Brazil, Adds Restrictions for South Africa

On January 25, 2021, President Joseph R. Biden Jr. issued a proclamation reinstating COVID-19 entry restrictions for travelers from Brazil, the United Kingdom, Ireland, and the 26 countries that comprise the Schengen Area of Europe. The proclamation also adds South Africa to the list of countries subject to travel restrictions.