Immigration Predictions in the United States in 2022: In his first year in office, Joe Biden faced serious challenges in addition to big expectations. During the course of 2020, the White House and the Department of Homeland Security (DHS) released several new policies to ease immigration system burdens and bottlenecks. DHS also rescinded some of the more egregious and restrictive immigration policies put in place under the previous administration. Hopefully, there will be more improvements in 2022, but we expect there might also be a few challenges.

USCIS AND DOS Backlogs are Expected to Slow, But They Won’t Disappear

Immigration Predictions in the United States in 2022

More than 8 million cases remained pending at the end of FY2021, a dramatic increase in the backlog in the past two years. In the wake of the Covid-19 pandemic outbreak in March 2020, a number of U.S. embassies and consulates are presently closed worldwide. This has led to a massive backlog of green cards at the   US Department of State: it was estimated that there were more than 9 million green card applicants in the queue at the end of FY2021. The backlog of family-based green cards is estimated at 7.5 million, and the backlog of employment-based green cards is estimated at 1.6 million.

USCIS is funded almost entirely by fees it receives from applicants, so backlogs there may be considered a “resource issue” that may require Congress to provide additional financial assistance.

As part of USCIS’s efforts to reduce bottlenecks and delays, the administration has repurposed biometrics for some applicants beginning in March 2020, reinstituting a Trump administration policy that prevented USCIS from deferring to its own, earlier decisions on renewals and extensions, and expanded over time at Lockbox facilities. During the summer of 2021, the State Department also ramped up its hiring. This and other improvements that reduce processing times and increase flexibility should be enabled by increased staffing and training.

Nevertheless, even with a large number of additional employees, clearing 8 million pending cases at USCIS and 9 million at DOS will take a great deal of time and energy. It seems reasonable to anticipate that the number of applications received by the agencies will increase in 2022, given the increasing number of applications received each year. Though USCIS and DOS may be able to reduce the millions of pending applications by 2022, this will not solve the backlog problem.

PIECEMEAL IMMIGRATION REFORM CAN BE ACHIEVED THROUGH LEGAL REFORM

A Senate parliamentarian decided on Dec. 16 that immigration advocates’ “Plan C” – parole in place and work authorization for illegal immigrants who’ve been here continuously since 2011 – will not be included in the Build Back Better Act that Democrats are trying to pass through the budget reconciliation process.

It is possible that separate immigration proposals passed in the House bill, such as a provision allowing an applicant to pay a supplemental fee to expedite their case, could survive in the parliament before they are presented to the parliamentarian.

Immigration advocates and some Democratic lawmakers have proposed that the parliamentarian be ignored or replaced, but several Senate Democrats oppose this choice. At this time, there is no “Plan D” in the Senate, so immigration reform via the Build Back Better Act is stalled and possibly dead.

In spite of this, some advocates believe it is possible to adopt specific policies that are popular with the public and could be implemented individually. Congressional Democrats are facing pressure from their constituents to deliver on immigration promises made on the campaign trail. Among the major proposals on the table are legislation to protect Dreamers, essential workers, and those with Temporary Protected Status.

The H-1BVISA PROGRAM: Improvements

There are indications that the Biden administration plans to improve the H-1B visa program, which allows U.S. employers to hire foreign workers who are highly skilled and difficult to fill. Software development makes up the majority of the program, which is heavily skewed towards STEM occupations.

Both pro-immigration and anti-immigrant advocates have been critical of the H-1B program. Some claim it artificially lowers wages for U.S. workers, while others argue it allows foreign workers to be exploited. The Biden administration wants to revamp the program to address these problems, especially given the labor shortage in STEM fields.

The following changes are proposed for this year:

  • Allow entrepreneurs to be flexible
  • Revisions to the definition of employee-employer relationships
  • H-1B workers’ wages should be raised
  • Making site visits to employer’s sites a rule

A CONGRESSIONAL INITIAL ACTION REQUIRES ACTIVITY BY THE EXECUTIVE

Since Congress is stuck in hyper-partisan gridlock, it is unlikely that meaningful immigration legislation will pass in 2022, so the executive branch may become more involved in immigration policy. As in the case of the 2018 public charge rule or the 2020 fee rule, for example, presidential proclamations and executive orders could be used, as well as increased use of the agency rulemaking process.

Two pieces of legislation passed in the House last year before dying in the Senate, both the American Dream and Promise Acts. 

More recently, the House passed the Build Back Better Act but the Senate has stymied it because of procedural rules related to the budget reconciliation process and horse-trading over climate-related provisions and the Child Tax Credit.

Despite 72 percent of Americans support a path to citizenship for Dreamers, the Senate has failed to advance the Dream and Promise Act. The Department of Homeland Security (DHS) responded to this stalemate and the ruling of a federal judge in Texas by proposing to codify the DACA program. It will become a part of the Code of Federal Regulations, which governs immigration law along with the Immigration and Nationality Act (INA) after notice and comment from the public.

The obstructionism in the Senate has reached unprecedented levels, we should expect to see the President use his executive power more, as well as his cabinet agencies and their rulemaking.

IMPROVING FEES FOR THE GOVERNMENT

Immigration Predictions in 2022

Several nonimmigrant visa fees will increase significantly in 2022 according to the State Department. During the next two years, student visas (F, M, J) and visitor visas (B-1/B-2) are likely to increase by more than 50% – from $160 to $245. From $190 to $310 – a 63% increase – employment visas will see a similarly large increase.

Before September 2022, the new fees will be in effect.

Here is a breakdown of what Boundless proposes.

BIDEN ADMINISTRATION LITIGATION WILL CONTINUE AMID NOD TO TRUMP ERA POLICIES

The year 2022 is likely to follow a similar pattern to the past five years, marked by ongoing and extensive litigation. At the end of 2021, lawsuits were pending over the Migrant Protection Protocols (“Remain in Mexico”), President Biden’s ICE enforcement priorities, delays in work permit processing, restrictions on asylum, and whether the federal courts were permitted to review DHS’s decisions on whether non-citizens can be deported. It is likely that more cases2022, and perhaps more will join them.

The law has swiftly dealt with several executive actions related to immigration during the past decade, whether it was a policy memo like the one that put DACA into effect or an executive order like the Muslim ban or regulation in the Federal Register like the 2019 public charging regulation.

Biden administration policies, such as the public health order known as “Title 42,” have often been unpopular with the public, which has resulted in the revival of litigation. The Biden administration formally rescinded “Remain in Mexico” only for the state of Texas and others to sue to have it reinstated. Some cases, like those regarding the backlog of employment authorization applications (EADs), will continue regardless of whether or not the new leadership can clear the backlog.