Biden Immigration Reforms May Benefit Healthcare Employers

The Biden administration has introduced the biggest reforms to U.S. immigration of the past twenty years, and healthcare employers may benefit most. Titled as The U.S. Citizenship Act of 2021, the bill would make sweeping changes across the board to the United States immigration, visa, and border control system. This includes reversal and Congressional prohibition of many of the immigration-related executive actions of the previous administration, providing a path to legal residence and eventual citizenship for as many as 11 million undocumented immigrants in the United States, as well as current Deferred Action for Childhood Arrivals (DACA) dreamers, Temporary Protected Status beneficiaries, essential workers on a non-immigrant status, and agricultural laborers. The bill also includes recreating the V visa program to allow families to await immigrant visa approval together in the US; ending country-specific visa annual maximums; granting immediate relative status to spouses and children of green card holders; and other changes.

How Healthcare Employers Would Benefit

Firstly, the proposed Biden U.S. immigration reforms would clear employment-based visa backlogs, recapture unused visas, reduce lengthy wait times, and eliminate per-country visa caps. Any one of these measures on their own would promote faster and less burdensome processing of visas for healthcare workers; however, any combination of these would enable American healthcare employers to meaningfully address the growing supply and demand deficit for more health occupations. Let us consider each of these further.

Clear Employment-Based Visa Backlogs

On the employment-based forefront, the proposed bill seeks to grow the U.S. economy by “clearing employment-based visa backlogs, recapturing unused visas, reducing lengthy wait times, and eliminating per-country visa caps.” The legislation would create a program to “stimulate regional economic development, give the U.S. Department of Homeland Security the authority to adjust green cards based on macroeconomic conditions, and incentivize higher wages for non-immigrant, high-skilled visas to prevent unfair competition with American workers.”

The proposed bill would provide additional benefits and protections to dependents of foreign national workers. It would increase the opportunities for dependents of H-1B visa holders to obtain work authorization. This is an expansion of the current H-4 Employment Authorization Document (EAD) guidelines, which do not allow dependent children to obtain work authorization.

Recapture Unused Visas

Thousands of visas allocated each year can go unused. This happens inadvertently when U.S. Citizenship and Immigration Services and the Department of State incorrectly estimate visas in the visa bulletin. When visas go unused, immigration law generally attempts to “cross-allocate” them, shifting unused employment-based visas into family-based categories for the following year and shifting unused family-based visas into employment-based categories.

However, the unused employment visas do not always get cross-allocated for technical reasons. The reality of this situation is that for decades, unused employment-based visas have not been automatically recaptured. Instead, they have simply vanished.

Congress has “recaptured” some of these unused visas twice in the past. Between the American Competitiveness in the 21st Century Act in 2000 and the 2005 emergency supplemental appropriations bill, Congress has recaptured nearly 200,000 unused visas. 

Those recaptured by the 2005 bill were exclusively for nurses. Still, through 2009, over 176,000 visas went unused and were never recaptured. While no publicly available data exists since 2009, the years since have doubtlessly seen additional unused visas that never were recaptured. 

Eliminate Per Country Caps

Currently, no country can receive more than 7% of available employment-based visas in a given year. This arcane formula does not consider that the populations of countries vary significantly. Under the current system, India with a population well over one billion persons is limited to the same number of visas as Botswana, a country of barely two million.

Removing the per country cap would again make visas available to Indian and Chinese nationals, both countries with vast numbers of highly qualified health professionals currently locked out simply because of multi-year processing backlogs.

While these would be positive measures, do the sweeping Biden U.S. immigration reforms have any realistic chance of becoming law?

The true answer is that no one knows. And before looking too far ahead, it is helpful to look back at some immigration legislative history. Immigration attorney Mike Hammond shares a very concise history going back to 2007.

“Do you recall the comprehensive immigration bill passed by the Obama/Biden Administration when it held the majority in Congress during their first term? No. That is because it did not happen. The last pro employment-based immigration bill to gain any traction was in 2013. The bill passed overwhelmingly in bi-partisan fashion in the Senate but was blocked from ever having a vote in the Republican controlled House. The bill was strongly supported by President Obama and then Vice-President Biden. Biden even presided over the final vote in the Senate to demonstrate support. Let us go back a few years earlier when President Biden was in the Senate and both he and then Senator Obama voted for an employment-based amendment designed to torpedo the 2007 Immigration Reform Bill. Most would consider that vote as politically motivated to prevent President Bush from an achievement rather than policy motivated so I do not think we can take this as revealing much. In addition, many of the members of the employment-based immigration bar, including myself, did not view that Bill as employer-friendly. My conclusion is that there is little to learn from President Biden’s support for or opposition to any prior immigration bills,” said Hammond.

Expect Greater Stability of Immigration Regulations and Policy

Even if the sweeping measures proposed in the U.S. Citizenship Act of 2021 are not fully adopted, it is reasonable to expect far greater stability of immigration regulations and policy. After four years of enduring immigration regulatory whiplash with constant proclamations being issued, challenged in the courts, injunctions granted, injunctions denied only to have further rules implemented again in a slightly different format, even the status quo would bring some relief and far more certainty.

The greatest likelihood is that employment-based immigration changes will come in the form of policy and regulatory change. For health care employers and the general public, the pandemic very quickly exposed the fragility of the healthcare workforce across the country. It will be interesting to see if the elected leaders in Washington embrace the vitally important role that immigration plays in ensuring a sustainable, competent healthcare workforce for the future.

If you are a hospital or healthcare employer interested in learning more about the benefits of international nurse recruitment, click here to download the USA Guide to Direct Hire International Recruitment.