Expected Changes Under the Biden Administration Affecting EB-3 Unskilled Visa Applicants

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Key Immigration Policy Shifts

End of all Employment-Based Visa In-Person Interviews (only in extreme circumstances)

Prior to the Trump Administration, it was rare that for an EB-3 Visa case to be interviewed. Those cases were all adjudicated without an interview. You will see this happening more even prior to Trump leaving office. I think even before Trump leaves, we're going to see a lot more approvals across the board.

End of Automatic Denials

Trump wrote an internal USCIS Policy memorandum allowing for automatic visa denials without the opportunity to “cure” an issue. That memorandum will be rescinded on day one and USCIS will be required to issue RFEs and NOIDs prior to any denials.

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Streamlining Case Processing

Administration Processing Case Denial Clearances

Any cases from Consular to USCIS that are currently pending administrative review will be reviewed and resolved as part of a push by USCIS to clear its backlog of cases. USCIS will attempt to hire additional workers and clear up all prior backlogs for Family-Based and Employment-Based Cases.

Recapture Previously Unused Green Card Numbers

There is a theory that any unused preference immigrant numbers from FY92 to the present can be recaptured. The 1990 bill seems to imply that all visa numbers had to be used, but no one has used it thus far. This could recapture a million unused Green Cards from prior years and ensure cases are current for a very long time. There would be no need to pass any legislation on this because Congress already passed this.

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Changes to Visa Caps and Dependents

No Inclusion of Dependents and Spouses Against Cap

Currently, dependents and spouses are included in any cap along with the main applicant so instead of 10,000 EB-3 Unskilled Visas being available, it's really just 5,000. There is significant debate within Biden world about whether the 1990 bill meant to include dependents and spouses against the visa cap.

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Focus on Employers Over Applicants

Emphasis on Employer Compliance

USCIS under Biden will focus more on employer (petitioner) compliance rather than penalizing individual visa applicants. This shift ensures that visa applicants are not unfairly punished for employer-related issues.

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Rescind Trump’s Travel Bans, Public Charge, and Healthcare Mandates

Reversing Travel Bans and Public Charge Rules

Biden will rescind the public charge (I-944) and Muslim ban on day one. The COVID19 bans will take a little bit more time because COVID19 is still ongoing, international travel is already down, and several countries will not even allow Americans. The bigger issue is also that, in terms of Consular, many countries are not permitting Visa Officers to return given that America is a “high risk COVID19” zone so even if we didn’t have a COVID19 ban, its likely that the wait-times for visa interviews at Consulates and Embassies will be significant for FY2021.

Return of INFOPASS

Prior to the Trump Administration, if a visa applicant had an issue (error on their EAD card or did not receive their Green Card), they could go visit a USCIS office and talk to a USCIS adjudicator via INFOPASS. That will likely return and with teeth and authority. Level 2 and 3 USCIS adjudicators will take part.

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Potential Congressional Action

Immigration Bill Priorities

If Congress passes an immigration bill, it may focus on:

1. Doubling or tripling visa numbers.
2. Ending the diversity lottery.
3. Protecting DACA recipients.
4. Allocating additional funding for border security.

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Potential Congressional Action

Simplifying Employer Petitions

Employers with a strong compliance record may qualify for a Trusted Employer Program, reducing the need to submit extensive documentation for each petition. This program will function similarly to Global Entry or TSA PreCheck.