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Election 2024 And Immigration Policy: Here's How Employers Can Prepare For A Change In Administration

The results of the 2024 election could have a long-lasting impact on the United States immigration system.

The race will pit current Democratic Vice President Kamala Harris against former Republican President Donald Trump, with election day set for Tuesday, November 5.

The two candidate have starkly different views on immigration, and with the impending change in administration, it is prudent for employers to proactively prepare their businesses, immigration programs, and employees, and begin taking action.

Summary of Kamala Harris' immigration policies

Democratic nominee Kamala Harris currently serves as Vice President under current President Joe Biden. Overall, the Biden administration has been relatively positive for employment-based immigration and has demonstrated a more collaborative approach with business immigration attorneys and advocates in some areas.

Harris and Vice-Presidential nominee Tim Walz (the current governor of Minnesota) are expected to continue the immigration policies of the current administration. Their campaign website reads:

"Vice President Harris and Governor Walz believe in tough, smart solutions to secure the border, keep communities safe, and reform our broken immigration system. As Vice President, she supported the bipartisan border security bill, the strongest reform in decades. ... As President, she will bring back the bipartisan border security bill and sign it into law. At the same time, she knows that our immigration system is broken and needs comprehensive reform that includes strong border security and an earned pathway to citizenship."

Some of the immigration policies implemented by the current administration include:

"Keeping Families Together" initiative

In addition to the "earned pathway to citizenship" mentioned on her campaign website, Harris will likely continue to advocate for and attempt to implement the "Keeping Families Together" initiative, which was introduced by President Joe Biden this summer.

That policy allows certain undocumented individuals who are married to U.S. citizens, as well as their children, to apply for legal permanent residency via "Parole in Place," provided they meet all eligibility criteria. The program began accepting applications in mid-August but was quickly blocked by the courts.

As of the publication of this white paper, USCIS could continue to accept applications for the program from applicable foreign nationals yet was blocked from adjudicating those petitions.

Reduced requests for evidence and denials; General increase in cooperation

Requests for evidence (RFEs), Notices of Intent to Deny (NOID), and overall denials increased during the first Trump administration. Those numbers, however, have noticeably decreased during the Biden administration from 2021 to the present. Immigration attorneys and advocates are hopeful that this trend will continue in a Harris administration.

On a similar note, overall cooperation between The Department of Homeland Security (DHS), as well as USCIS, and employment-based immigration attorneys and advocates has seemed to increase under President Biden.

USCIS director Ur M. Jaddou as well as other agency officials have attended American Immigration Lawyers Association (AILA) meetings and conferences during her tenure, while some of the Biden administration's policies have been finalized after receiving input from relevant immigration counsel and advocates. This is another trend that may continue if Harris is elected President.

Online filings

USCIS has allowed for online filings of several immigration forms, including the Form I-129, Petition for a Nonimmigrant Worker for specific nonimmigrant visa types, during the Biden administration. Although there have been some minor tech-related issues, online filings as a whole have streamlined processes and generally made it easier to apply for immigration benefits, with the expectation that online filings will continue to expand to other visa types and forms.

It is likely that very few, if any, new forms will move to online filings under a second Trump administration, and it is even possible they could do away with online filing all together.

H-1B registration changes

The Biden administration made some significant changes to the H-1B registration process and lottery during their time in office, and it is reasonable to assume those adjustments would remain in place if Kamala Harris is victorious in the 2024 election.

One such change was issuing a final rule related to the H-1B registration process which took effect for FY2025 and specified that each cap-subject beneficiary was only registered for the lottery once, regardless of how many registrations were submitted in their name. The change ensured that each beneficiary had the same odds of selection and prevented organizations from misusing the registration system by filing multiple registrations for a single beneficiary.

Further, the rule allowed USCIS the ability to deny or revoke H-1B petitions where the "underlying registration contained a false attestation or was otherwise invalid." Under the new rule, USCIS can also rescind or reject an H-1B petition if it finds the registration fee was "declined, not reconciled, disputed or otherwise invalid."

The new rule also permitted some filings "with requested start dates that are after Oct. 1 of the relevant fiscal year, consistent with current policy."

It is unclear if USCIS would continue to pursue publication of an additional rule on the H-1B registration process under a Harris administration.

Further, USCIS debuted "organizational accounts" for FY2025 H-1B cap filings, as well as cap-exempt H-1B petitions. Under the organizational accounts, multiple members of an organization, including both business and legal representatives, can work together inside the organizational account portal to complete the H-1B registration; the Form I-129, Petition for a Nonimmigrant Worker and the associated Form I-907, Request for Premium Processing Service. The H-1B petitions and the premium processing request can be filed online via the organizational account.

The introduction of organizational accounts was praised by employment-based immigration advocates, as it offered a major improvement for collaboration between employers and their legal representatives. The Harris administration is expected to leave that program in place if they are elected.

Read More: Mondaq

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