Biden Immigration Bill Includes Several Employment-Related Provisions

February 19, 2021

Sen. Bob Menendez (D-NJ) and Rep. Linda Sánchez (D-CA) introduced President Biden’s U.S. Citizenship Act of 2021, which includes encouraging provisions on employment-based green cards and DACA while signaling potential challenges in obtaining H-1B visas for certain workers.

The 353-page comprehensive immigration bill would, among other items, provide an eight-year path to citizenship for nearly 11 million undocumented immigrants and eliminate several restrictions on family-based immigration.  Many Republicans have already expressed opposition to these provisions. 

The bill includes several measures of particular interest to employers: 

  • Wage-based H-1B visa allocation process:  The Department of Homeland Security (DHS) would be authorized to prioritize H-1B and other nonimmigrant work visas based on wages.  Recently, such a rule was delayed by the Biden administration through December 31, 2021.  In 2020, DHS predicted all H-1B level 1 workers (entry-level talent) and a significant percentage of those at level 2 (more experienced, "qualified employees") would not be granted visas under the rule.  

  • DACA: The measure grants immediate green card eligibility and three-year path to citizenship for those enrolled in the Deferred Action for Childhood Arrivals program. 

  • Employment-based green cards cap: The worldwide cap of employment-based visas would be increased from the current level of 140,000 visas per fiscal year to 170,000 visas per fiscal year. 

  • Per-country cap: The per-country cap of employment-based green cards would be eliminated.

  • STEM student cap exemption: The measure exempts from the numerical caps on visas individuals with a Ph.D. in a STEM field from a U.S. school. 

  • Demand-driven work visas:  The bill directs the Department of Homeland Security to establish a five-year pilot program to allow county or municipal executives to petition for up to 10,000 additional immigrant visas to support the region’s economic development strategy, provided employers in those regions certify there are available jobs and no workers to fill them.

Democrats, including President Biden, have indicated a willingness to adjust the bill to address concerns and to split the bill into several individual bills if necessary.  

In a virtual press conference, Rep. Sanchez said: "We all know that when you introduce a bill, oftentimes the end result is not exactly the starting result.  So there will be opportunities for us to talk with our Republican colleagues and educate them about what is in the bill, address concerns and modify, but we are confident that we can get this done."