Cecily Zamora
The H-1B visa program has been a point of contention in recent years, with the Trump administration making significant changes through policy, regulatory, and executive orders. With the Biden administration in power, there is a push to reverse some of these changes, including an executive order on birthright citizenship for children of temporary visa holders and a ban on travel from certain Muslim countries. The H-1B Modernization Rule is a regulation that requires a formal rule-making process to be changed, and the Biden administration has the majority to pass new laws and make further changes.
| Characteristics | Values |
|---|---|
| H1-B laws | Can be changed by executive order |
| Changes made by Trump administration | Policy changes, regulatory changes, and executive orders |
| Changes made by Biden administration | Reversing the ban on travel from certain Muslim countries, reversing damage to H-1B visas and the US immigration system |
| Changes to US citizenship rules | Children born in the US will not automatically acquire US citizenship if both parents are either unlawfully present or on temporary visas and neither parent is a US citizen or lawful permanent resident |
| Changes to green card applications | Does not directly affect green card applications but may indirectly influence decisions for families seeking permanent residency |
| Eligibility for status change | Must have been lawfully admitted to the US as a nonimmigrant, nonimmigrant status must remain valid, must not have violated the conditions of the status, and must not have committed any act that would make one ineligible to receive a nonimmigrant benefit |
| Extending H-1B status beyond 6 years | Employer may request an extension if at least 365 days have passed since a permanent labor certification was filed or since an immigrant visa petition was filed |
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What You'll Learn
H-1B visa changes
The H-1B visa is a non-immigrant visa that allows US companies to employ foreign workers in specialty occupations. The visa is typically valid for three years and can be extended for an additional three years. The H-1B visa has been a subject of debate and has seen several changes in recent years.
Changes to H-1B Visa Requirements under the Trump Administration
The Trump administration made significant changes to the H-1B visa program through policy changes, regulatory changes, and executive orders. One notable change was the issuance of Executive Order 14159, "Protecting the American People Against Invasion," which directed the Department of Homeland Security (DHS) to ensure that aliens comply with their registration requirements under the Immigration and Nationality Act (INA). The order also made the failure to register a civil and criminal enforcement priority.
Other changes to the H-1B visa program under the Trump administration include the Department of Labor (DOL) policy, which required end clients to be involved in and take responsibility for the H-1B process. There was also a proposed revision to the definition and criteria for "specialty occupations," which was met with opposition as it was seen to conflict with existing statutes and be based on a rescinded executive order.
Reversing H-1B Visa Changes under the Biden Administration
The Biden administration has worked to reverse some of the changes made by the Trump administration to the H-1B visa program. President Biden signed an executive order reversing the ban on travel from certain Muslim countries. Additionally, the Biden administration has considered opening a 30-day comment period to allow interested parties to provide feedback on the rules and proposed revisions to the H-1B visa program.
The H-1B visa program has undergone significant changes in recent years, with the Trump administration making modifications through executive orders, policy changes, and regulatory adjustments. However, it's important to note that while a president can easily rescind, modify, or replace executive orders, changes to formal regulations, such as the H-1B Modernization Rule, require federal agencies to undergo a formal rule-making process. The Biden administration has taken steps to reverse some of these changes and adapt the H-1B visa program to meet current needs.
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Executive orders vs regulations
Executive orders are directives issued by the President of the United States, managing the operations of the executive branch of the government. They are often proposed by federal agencies and issued by the President, influencing the internal affairs of the government, including the enforcement of legislation, dealing with emergencies, and waging wars. Executive orders are also used to set policies for federal agencies, although the degree to which the President can exercise this power is disputed.
Executive orders are considered to have the force of law, much like regulations issued by federal agencies. They are recorded under Title 3 of the US Code of Federal Regulations, which is a formal collection of rules and regulations issued by the executive branch and other federal agencies. Once an executive order is signed, it is sent to the Office of the Federal Register (OFR), which numbers each order and publishes it in the daily Federal Register. Executive orders are subject to judicial review and may be overturned if they are found to lack support by statute or the Constitution.
Regulations, on the other hand, are formal rules created by federal agencies that have the force of law. For example, the H-1B Modernization Rule is a regulation that was created by federal agencies and requires agencies to go through a formal rule-making process to make changes. Regulations are also recorded under Title 3 of the Code of Federal Regulations.
While executive orders can be easily rescinded, modified, or replaced by the President without requiring public input or a lengthy procedural process, regulations typically require a formal rule-making process to be changed. This distinction is important to note, as it highlights the relative flexibility of executive orders compared to regulations.
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Extending H-1B status
While a president can easily rescind, modify, or replace executive orders and administrative policies without requiring public input or a lengthy procedural process, regulations such as the H-1B Modernization Rule are formal rules created by federal agencies that have the force of law and require agencies to go through a formal rule-making process to make changes.
Now, if you are looking to extend your H-1B status, there are a few things you should know. Firstly, you are eligible to request an extension of your H-1B status if you are currently in valid H-1B status and will remain employed in a specialty occupation requiring specialized knowledge and skills. H-1B regulations allow for status extensions of up to six years, but in increments of no more than three years at a time. If you are applying for US permanent residence, you may be eligible for extensions beyond six years; otherwise, you must depart from the US for at least 12 months to re-establish H-1B eligibility.
The H-1B extension process involves several steps and can be initiated no earlier than six months before the expiration of your current authorization. Early preparation is advised as it can take 2-3 months for the International Center to prepare and file a complete H-1B petition. Once the extension petition is received by the US Citizenship and Immigration Services (USCIS), your H-1B employment authorization is considered temporarily extended for 240 days while USCIS reviews the petition. This temporary extension allows you to remain in the US and continue your employment. However, it is essential that you do not travel outside the US during this time. If travel is required, consult your International Center advisor for guidance.
USCIS standard processing of H-1B petitions is lengthy, taking about 8 months on average. However, they offer a premium processing option that expedites the review to 15 days. This premium processing fee may be paid by either the hiring department or the employee, depending on school policies. Once USCIS approves the petition, they will send an I-797 Approval Notice to the International Center, indicating the dates of your H-1B employment authorization extension. This approval notice may need to be presented to update your I-9 Employment Verification form.
If you are in H-1B status and applying for US permanent residence, discuss your options for continued employment and travel with the International Center. Additionally, if you have H-4 dependents, including a legal spouse or dependent unmarried children under 21, you may seek an extension of their status simultaneously. It is the responsibility of each H-1B employee and their dependents to take the necessary steps to maintain and extend H-4 status.
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Impact on green card applications
The H-1B visa is a non-immigrant visa category that allows companies in the US to employ foreign workers in occupations that require specialised knowledge. While the President can easily rescind, modify, or replace executive orders and administrative policies without requiring public input or a lengthy procedural process, regulations such as the H-1B Modernization Rule are formal rules created by federal agencies that have the force of law and require agencies to go through a formal rule-making process to make changes.
The impact of potential changes to H-1B laws via executive order on green card applications is an important consideration. While the executive order itself may not directly affect green card applications, it could have indirect consequences for families seeking permanent residency. For instance, children born in the US to parents on H-1B visas will not automatically acquire US citizenship if the parents are unlawfully present or on temporary visas, and neither parent is a US citizen or lawful permanent resident. This could influence the decisions of families considering extended stays in the US, as they may need to explore alternative pathways for their child's immigration status.
Additionally, the H-1B Modernization Rule eliminates the common-law employer-employee relationship definition, reducing the barriers for beneficiary-owned employers. This change could impact green card applications by potentially expanding the pool of eligible employers for applicants.
It is worth noting that the Department of Homeland Security (DHS) has been directed by the President to "continue its rulemaking process to modernise the H-1B program and enhance its integrity and usage, including by experts in AI and other critical and emerging technologies." This suggests that further changes to the H-1B program could be forthcoming, which may have additional indirect effects on green card applications.
Overall, while there may not be a direct impact, the potential changes to H-1B laws and the broader policy landscape could influence the decisions and strategies of individuals and families seeking permanent residency in the US. Staying informed about policy changes is essential for those affected.
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US citizenship changes
On January 20, 2025, President Trump issued Executive Order 14159, "Protecting the American People Against Invasion," which directed the Department of Homeland Security to enforce the registration of aliens in the United States. This order, however, does not directly address US citizenship changes.
Trump also attempted to modify US citizenship laws through another executive order, titled "Protecting The Meaning and Value of American Citizenship." This order aimed to end birthright citizenship for children born in the US to parents who are not US citizens or lawful permanent residents. It specified that children born in the US would not automatically become US citizens if both parents were unlawfully present, on temporary visas, or not permanent residents. This executive order was issued on January 20, 2025, with an effective date of February 19, 2025.
The attempt to modify US citizenship laws through executive action has faced significant legal challenges and opposition. Multiple federal judges have temporarily blocked the order, deeming it blatantly unconstitutional. The order has also been criticized by legal experts and scholars, who argue that the president does not have the authority to change citizenship rules and that it violates the Constitution and citizenship statutes. The outcome of the legal battle remains uncertain, and it is likely to continue for years.
While the executive order on birthright citizenship has been halted, it is essential to note that policies can change with future administrations or judicial rulings. Therefore, staying informed about any updates or modifications to US citizenship laws is crucial.
In terms of specific US citizenship changes, the primary focus of the executive order is on removing automatic citizenship for children born to parents on temporary visas, such as H-1B, H-4, or student visas. This modification would require these children to go through a naturalization process or apply for citizenship through other means.
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Frequently asked questions
Yes, H1-B laws can be changed by executive order. The Trump administration made changes to H1-B visa laws through executive orders, policy changes, and regulatory changes. The Biden administration has also made changes to H1-B visa laws through executive orders.
The Biden administration has reversed the Trump-era ban on travel from certain Muslim countries. They have also withdrawn the Department of Labor (DOL) policy, which required end clients to be involved in and take responsibility for the H1-B process.
The Trump administration made changes to the H1-B visa laws through executive orders, including the issuance of Executive Order 14159, "Protecting the American People Against Invasion." This order directed the Department of Homeland Security (DHS) to ensure that aliens comply with their duty to register with the government under the Immigration and Nationality Act (INA).
To be eligible to change your status under H1-B laws, you must have been lawfully admitted to the United States as a nonimmigrant, your nonimmigrant status must remain valid, you must not have violated the conditions of your status, and you must not have committed any acts that would make you ineligible for nonimmigrant benefits.
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