FREE DOWNLOAD: Click Here To Download The Employers Guide to the H-1B Process.

FREE DOWNLOAD: Click Here To Download The Employers Guide to the H-1B Process.
Leaked Memo Indicates Biden Administration Could Authorize Employment for Certain Visas

Last year, the White House released an announcement stating, “The Biden-Harris Administration believes that one of America’s greatest strengths is our ability to attract global talent to strengthen our economy and technological competitiveness.” This statement was made in connection with several systems intended to clarify the visa processes for STEM workers, and confirmed that the administration intends to continue making improvements to the process going forward.

This is a significantly different approach to immigration and foreign policy than Trump’s. In many ways, it is a return to the status quo established under the Obama administration. With that comparison in mind, a recently leaked memo produced by the U.S. Citizenship and Immigration Services (USCIS) in 2015 may indicate where the next improvements to immigration policy will be made.

This memo outlines actions an administration could take to bring new educated foreign nationals to the country. While it covers a variety of subjects, the most important is the argument that the administration has the right to authorize employment for beneficiaries of employment-based visas. 

The memo states, “USCIS is now proposing to amend its regulations to extend employment authorization to the beneficiaries of approved employment-based immigrant visa petitions regardless of whether they have filed their applications for adjustment of status. This extension would be permissible given the Secretary of Homeland Security’s broad statutory latitude to determine which categories of aliens beyond those for whom employment authorization is mandated by statute, should be considered authorized for employment in the United States.” This could impact every type of work-related visa in the country, including H-1B visas. 

The Potential Impact of Extending Employment Authorization

Recipients of most work-related visas face stringent limitations on how long they may remain in the country and what activities they are permitted to perform while they are here. One of the strictest rules is work status: workers must remain employed, or their visas are no longer valid, and they must return to their home country. 

This is a problem for many workers. Depending on the visa, they may be unable to change jobs easily or at all. In addition, they cannot start their own businesses within the U.S. Most visa holders need to successfully petition for a change of status to an immigrant visa or green card to do so. 

Extending employment authorization status could make this significantly easier. Foreign nationals who receive employment authorization documents (EAD) are eligible to change jobs or start businesses even if they have not filed a successful change of status petition. This could help attract more highly educated foreign nationals to the U.S., reduce wait times and competition for all employment visas, and reduce pressure on USCIS overall. 

Possible Future Changes to H-1B Visas?

While the leaked memo provides an idea of how USCIS may change employment immigration in the future, H-1B visas are unlikely to change as much as alternatives like H-2A, H-2B, L-1A, and L-1B visas. H-1B visa beneficiaries can already change their employer once they receive their visa. In addition, H-1B holders already have the benefits of a defined pathway to pursuing a green card. 

Analysis of the memo indicates that, should USCIS use its authority to extend EADs to all employment-based visa holders, H-1B workers would face fewer complications if laid off. It also shows that there would be less pressure to renew H-1B visas by simplifying the path toward employment-based green cards. Still, this visa is already the most approachable and portable of the work visas available. 

Moving Forward With H-1B Visa Applications

While the leaked 2015 memo demonstrates interesting possibilities for the future of work visas, USCIS has not officially released any amended rules or regulations. Even if it does in the future, H-1B visas will still offer the most flexibility for highly skilled workers and their employers. As an employer, the best path to bringing promising foreign nationals to the U.S. as employees remain the H-1B visa application process.This is why H-1B applications are so competitive. The submission period for Fiscal Year 2024 H-1B visas begins March 1st and ends March 17th. Do not risk missing this crucial application period. Consult with the experienced employment immigration attorneys at Litwin & Smith to discuss your needs and learn how to ensure your application is considered in the H-1B lottery for the coming year.

Practice areas

Schedule a consultation

Litwin & Smith Pleasanton, CA Office

5829 Stoneridge Mall Road, Suite 218,
Pleasanton, CA 94588


5201 Great America Parkway,
Suite 320, Santa Clara, CA 95054