Visa Lawyer Blog

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Ahead of the U.S. presidential election, President Biden is considering the rollout of a set of new executive actions aimed at curbing illegal migration at the U.S. southern border and measures that would create new obstacles for asylum applicants. Individuals speaking on condition of anonymity have said these policies could come as soon as March 7th as part of President Biden’s State of the Union speech.

According to reports by insiders of the Biden administration, the proposals under discussion would use a provision of the Immigration and Nationality Act (INA) to stop migrants from requesting asylum at U.S. ports of entry once a certain number of illegal crossings has been reached.

While the exact details of the executive order are still unclear, the proposal would likely carve out several exceptions for unaccompanied minors and those who meet the requirements of the United Nations Convention Against Torture. A similar proposal was previously discussed in the U.S. Senate as part of a border deal earlier this month.

To further appease conservative voters, the Biden administration is also considering implementing policies that would make it harder for migrants to pass the initial screening of the asylum interview process. Under these proposals, the administration would elevate the “credible fear standard” of the asylum process, thereby narrowing the pool of applicants eligible to seek asylum. Those who cannot meet the elevated standard, would be swiftly deported.

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Welcome to the start of a brand-new week. In this blog, we cover new reports from the U.S./Mexico border addressing the growing number of asylum seekers entering the United States from Tijuana into San Diego, through a process known as “humanitarian parole.”

According to a recent report published by the National Institute for Migration in Baja California, in April of 2022, just under 400 migrants were granted permission to cross through Ped West, one of two pedestrian crossings at the San Ysidro Port of Entry.

When compared to crossings in August, that number has skyrocketed to 4,075 migrants entering using their humanitarian parole document.

What is humanitarian parole?

  • Humanitarian parole is a process by which a foreign national (who may be inadmissible or otherwise ineligible for admission into the United States) may enter for a temporary period of time for urgent humanitarian reasons or significant public benefit by filing Form I-131 Application for Travel Document and Form I-134 Affidavit of Support including their supporting documentation.

In addition to those entering with humanitarian parole, the Institute reports that more than 2,500 Haitian refugees have been granted permission to cross into the United States, as well as 440 migrants from Honduras fleeing organized crime.

At the same time, the Institute reports that many migrants in Tijuana are being falsely misled to believe that migrant shelters can help them bypass detention upon requesting asylum at the U.S. border.

Sadly, the Biden administration has not done little to address the growing number of asylum seekers. In fact, the Biden administration has been silently asking the Mexican government to allow for the expulsion of thousands of asylum-seeking migrants from Cuba, Nicaragua, and Venezuela through a little-known policy known as “Title 42.” This expulsion policy began under the Trump administration in March 2020 and has continued under President Biden. Since that time, the Mexican government agreed to accept expulsions of its citizens, along with those of El Salvador, Guatemala, and Honduras totaling more than 2 million migrants.

According to the Washington Office on Latin America (WOLA) the expulsion of migrants from Mexico, El Salvador, Guatemala, and Honduras is near the highest-level seen in over 15 years, but has declined from 2021 (154,000 in July 2021, 104,000 in July 2022). It is estimated that the U.S. government has used Title 42 to expel 78 percent of these migrants.

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A brand-new bill called the H-1B and L-1 Visa Reform Act of 2020 (S. 3770) sponsored by Republican Senator Chuck Grassley has recently surfaced. As you might have already guessed, the bill seeks to make changes to the current H-1B and L visa programs to reduce fraud and abuse within the H-1B and L visa programs, provide protections for American workers, and enforce stricter requirements for the recruitment of foreign workers. The H-1B visa program is aggressively targeted in this new piece of legislation.

Proposed Changes to the H-1B visa program

First, as it relates to the H-1B visa worker program, the bill proposes changes to existing wage requirements.

The law would require employers to pay the highest wage from three categories:

1) the locally determined prevailing wage level for the occupational classification in the area of employment

2) the median average wage for all workers in the occupational classification in the area of employment; or

3) the median wage for skill level 2 in the occupational classification found in the most recent OES survey.

Second, the bill would make changes to current law and require U.S. employers seeking to hire H-1B workers to publish job postings on a website established by the Department of Labor. After filing the labor condition application, the employer would be required to post the job on the website for at least 30 calendar days. The job posting would have to include a detailed description of the position, including the wages and other terms and conditions of employment, minimum education, training, experience, and other requirements for the position, as well as the process for applying for the position.

Third, all H-1B employers would be required to prove that they have tried to recruit American workers for jobs offered to H-1B workers. Under current law, only H-1B dependent employers (those with more than 50 full time employees of which at least 15% are H-1B employees) are required to recruit American workers for H-1B positions. This would be a drastic change in the law creating additional burdens for U.S. employers seeking to hire foreign workers with specialized skills.

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