Biden Administration Announces Planned Changes to H-1B Employment Visas

Earlier this last week, the Biden Administration released a set of policy goals for employment-based immigration that include plans for changes to the H-1B, the visa that permits highly skilled workers to work in the United States for a period of up to six years. The proposed changes include new definitions for the employer-employee relationship, clarifications regarding when employers must notify U.S. Citizenship and Immigration Services (“USCIS”) about changes in the terms of the worker’s employment, and updated rules for how and when the U.S. Department of Homeland Security (“DHS”) will conduct employer site visits to ensure compliance with applicable rules.

Meanwhile, the U.S. Department of Labor (“DOL”) is planning to move forward with a proposal to increase prevailing wages for both the H-1B program and for workers seeking permanent residence in the United States. The new rule on prevailing wages is expected to be announced in November, and this blog will continue to cover this story as details develop.

Third Circuit Court of Appeals Broadens the Due Process Right to an Interpreter

Last Wednesday, the Third Circuit Court of Appeals announced that judges cannot assume that individuals who speak variations of standard English do not need interpreters. Circuit Judge Thomas Ambro wrote that “failing to provide an interpreter when needed makes meaningless a noncitizen’s right to due process and not making a threshold inquiry into whether an interpreter is needed, in turn, renders the right to an interpreter meaningless.” 

The court ruled that immigration judges must determine whether individuals who face deportation and speak a variation of English also understand “American” English, or if an interpreter will be needed. The three-judge panel unanimously determined that it is a violation of the constitutional right to due process for an immigration judge to conduct an asylum trial and take testimony from a noncitizen after it becomes clear the individual does not understand American English, including a significant percentage of what the judge is asking. 

Afghans Face Uncertain Future in Third Countries

In a rush to flee threats and violence from the Taliban, thousands of Afghans are now stranded in third countries waiting to enter the United States. Many are also residing temporarily on U.S. military bases in Qatar, Germany, and Italy.  

U.S. Army General Mark Milley announced on Wednesday that the U.S. was able to evacuate over 40,000 people to several countries in the Middle East and Europe, as well as 20,000 people to multiple military bases inside the United States. Nevertheless, these evacuees, along with immigration attorneys and refugee groups assisting with this work, are very unsure about the next steps in the process, including how long they will be living in temporary residences.

Critics have complained for many years about the slow-moving “Special Immigrant Visa” process, which granted immigration status in the United States to Afghans who assisted the American military during the war. As a result, many people who applied for visas several years ago still had not received decisions, and were thus forced to flee this month. The U.S. government now has said it will dedicate extra resources to processing these cases as quickly as possible.