2021 was in many ways a disappointing year for immigration reform. Although the White House rescinded some Trump-era restrictions on immigration, efforts to create a path to citizenship for Dreamers and undocumented agricultural workers failed. Despite these setbacks, immigration reform remains one of the Biden Administration’s top priorities for this year. This article predicts five things that will happen in immigration in 2022.
Reduced USCIS and State Department backlogs
The coronavirus pandemic caused case processing backlogs at U.S. Citizenship and Immigration Services (USCIS) offices and the U.S. Department of State to reach staggering heights. At the end of FY2021, there were more than 8 million pending cases at USCIS offices. Separately, many U.S. embassies and consulates shut down due to the pandemic, resulting in a backlog of more than 9 million green card cases at the State Department at the end of FY2021. Of this 9 million, about 1.6 million are employment-based petitions while about 7.5 million are family-based petitions.
In 2022, this backlog will ease a bit but won’t necessarily go away. That’s because the pandemic is only part of the problem. Backlogs also result from insufficient human and financial resources at the government offices processing immigration applications. In the summer of 2021, the State Department did hire 500 new foreign and civil service personnel to reduce the backlog. But a significant backlog will persist as the number of applications submitted to the agencies continues to increase yearly.
Improvements in the H-1B visa program
The Biden administration is seeking to improve the H-1B visa program with a series of initiatives. The visa program allows U.S. employers to hire foreign skilled labor in specialty positions that are difficult to fill. The program has received a healthy amount of criticism, both from people who are pro- and anti-immigration. Some have argued that the program is an opportunity for some unethical employers to exploit foreign workers, while others claim that continuing the program will drive down wages for U.S. workers.
To address these issues, the Biden Administration proposed changes including raising wages for H-1B workers, establishing rules for employer site visits, providing flexibility for start-up entrepreneurs, and changing the definition of employer-employee relationship. Additionally, the H-1B final rule proposed by Chad Wolf under the Trump Administration to end the H-1B program was effectively overturned in December 2021. This, in addition to Biden’s proposed improvements, will allow U.S. employers, particularly tech companies and others recruiting skilled foreign talent in STEM especially, to be able to maintain and even increase their recruitment numbers.
Government fee increases
It is going to cost more to get a nonimmigrant visa in 2022. The State Department has proposed several government fee increases for nearly all nonimmigrant visa categories in 2022.
Under the new proposal, the fees for student visas (F, M, and J visas), tourist visas (B-1 and B-2 visas), and Border Crossing Cards for people 15 and older, will increase by 53%, from the current $160 to $245. Fees for employment visas (E, H, L, O, P, Q, and R categories) will also increase by 63% from $190 to $310. The biggest fee increase will be for J visa holders seeking to waive the two-year home residency requirement for their status. That fee will increase, by 325% from $120 to $510.
This new fee proposal is expected to go into effect before September 2022. The State Department will continue to accept comments on their new proposal until February 28, 2022. Check out our article for tips for affording increased fees.
Continued immigration litigation by the Biden Administration
At the end of 2021, there were several active immigration lawsuits involving the Biden Administration. Active lawsuits include those filed against President Biden’s Immigration and Customs Enforcement (ICE) priorities, asylum restrictions, work permit processing delays, the Migrant Protection Protocols (MPP or “Remain in Mexico”), whether federal courts can review DHS deportation decisions, and public health directives at the U.S.-Mexico border like “Title 42”. We can expect these lawsuits to remain active in 2022, with even more lawsuits joining them.
Some of these lawsuits were filed in response to Executive Action. For example, the Biden administration formally rescinded the “Remain in Mexico” policy, formally known as “Migrant Protection Protocols” (MPP), which required more than 60,000 asylum seekers to wait in Mexico until their asylum cases were decided in U.S. immigration courts. However, the state of Texas and others sued to overturn the decision.
Other lawsuits like the one against USCIS Employment Authorization Document processing delays will remain active because application processing backlogs, while relatively reduced, will almost certainly persist in 2022.
Executive Action following congressional inaction
More than 72% of Americans support immigration reform allowing Dreamers to become U.S. citizens, but legislation to that effect has repeatedly failed to pass in Congress.
Congress remains divided over immigration reform bills like the Dream Act, which passed in the House but stalled in the Senate. In response to congressional inaction, we can expect to see an increased use of executive orders by the president and of the agency rule-making process by cabinet agencies to try to make these immigration changes happen. As an example, the Department of Homeland Security (DHS) has proposed a rule to fully restore the DACA program through the Code of Federal Regulations.
As long as gridlock continues in the Senate, we can expect such executive responses from the President and other cabinet and federal agencies.