The Biden administration has the authority to extend employment authorization to all beneficiaries of approved employment-based immigrant visa petitions, a policy that would enhance the ability of the United States to retain talented
individuals and improve the lives of many foreign-born scientists, engineers and physicians. A leaked memo produced (but not released) during the Obama administration reveals U.S. Citizenship and Immigration Services (USCIS)
has concluded it has the authority to take this action.
A Leaked Memo
In 2015, immigration attorney Greg Siskind received a USCIS memo inside an envelope without a return address, he said in an interview. Siskind confirmed the memo’s authenticity through a USCIS official who had left the agency. (I
also have confirmed the authenticity.) The memo points to actions the Biden administration could take to reach its objective of attracting and retaining highly educated foreign nationals. “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,” according to a 2022 White House statement.
The Obama administration memo’s most significant part argues it is permissible to provide employment authorization to the beneficiaries of approved employment-based immigrant visa petitions. 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.”
Today, individuals with approved immigrant petitions in the employment categories potentially must wait many years for an immigrant visa number to become available before being allowed to apply for “adjustment of status.” Only after
applying for adjustment of status can a foreign national change jobs or start a business without the limitations inherent in H-1B temporary status. The USCIS memo pointed to another way. (Note: H-1B visa holders can change jobs but
not as easily as others in the labor force.)
A Strong Legal Case For The Authority
Lynden Melmed, a partner with Berry Appleman & Leiden (BAL) and chief counsel of USCIS during the George W. Bush administration, agrees with the memo’s conclusion. “The statute does provide flexibility to the government, and U.S.
Citizenship and Immigration Services could strengthen their legal position by promulgating a regulation,” he said in an interview. “That authority has been in place for decades and has been used by both political parties throughout the years.”
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Melmed said, “That solution, like any band-aid policy fix, would put many foreign nationals in complicated legal situations. But that is the reality when Congress is unable to legislate effectively.”
The memo cites judicial decisions and states, “As courts have explained, the Secretary’s authority in this area is ‘broad’ and largely ‘unfettered’ under the INA [Immigration and Nationality Act].” Siskind notes more recent court rulings have
strengthened the Department of Homeland Security (DHS) secretary’s authority to issue employment authorization.
USCIS never released the internal memo and, in 2016, the agency chose a narrower policy to address shortcomings in the employment-based immigration system. It came in response to a call for “Policies Supporting U.S. High-Skilled
Businesses and Workers” in November 2014 from DHS Secretary Jeh Johnson. The USCIS memo’s conclusion may encourage the Biden administration to consider the key policy recommendation—extending employment authorization to
all beneficiaries of approved employment-based immigrant visa petitions.
Congress has failed to pass reforms to eliminate the per-country limit or increase the number of employment-based green cards. (A per-country limit bill did not receive a House floor vote in December 2022.) As a result, many high-skilled
foreign nationals from India will be forced to wait decades to obtain employment-based green cards, leaving them in situations that range from difficult to untenable. Potential immigrants from China are also affected.
