An obscure Biden administration policy change creates new opportunities
By Calleigh M. McRaith, Misti A. Binsfeld, and Robert P. Webber
The November 2022 mid-term elections brought divided government to Washington D.C., with the Republicans winning a majority in the U.S. House of Representatives and the Democrats retaining control of the U.S. Senate (and of course the White House). New Speaker of the House Kevin McCarthy has vowed not to move forward on immigration reform legislation during the 2023-2024 Congress.
Amid this new gridlock, employers around the country (and particularly in Minnesota) continue to struggle with finding workers. In a speech on November 30, 2022, Federal Reserve Chair Jerome Powell identified a “net plunge” in immigration as a key factor in the national labor shortage and ongoing, persistent high inflation. The “net plunge” in immigration is attributed to restrictive policies of the Trump Administration from January 2017 to December 2020 followed by pandemic-related closures of U.S. consulates worldwide.
Because the ongoing labor shortage impacts employers in nearly every industry, some employers have pursued creative options to find and retain workers, including hiring foreign national workers to fill highly skilled and less-skilled positions. In what seems to be an effort to facilitate options for foreign nationals and employers, the Biden administration has quietly rolled out some relatively obscure policy changes. Employers, however, may be unaware of immigration options (including these relatively new options) that can help address labor shortages. The purpose of this article is to highlight a few strategies.
Opportunities to sponsor individuals with temporary protected status (TPS)
On July 1, 2022, the Biden administration announced a policy change related to travel documents for recipients of temporary protected status (TPS) that opened a pathway for employers to sponsor individuals with TPS for long-term employment.1
TPS is a program designed to allow people to stay in the United States while their home country is in crisis, due to either natural or political disasters. As of February 16, 2022, there were over 350,000 TPS holders in the United States.2 Nearly 200,000 of these are people from El Salvador who have been in the U.S. since 2001.3 Other countries with significant TPS populations include Honduras, Venezuela, Haiti, and Nepal.
Individuals with TPS can obtain an employment authorization document (EAD)—sometimes called a work card—but that work card is only valid while the TPS designation remains in place. If the TPS designation for any given country ends, the work authorization of a TPS national from that country also ends. This ongoing threat of TPS termination has created an uneasy situation for people with TPS. They worry that TPS for their country could end, meaning they would be forced to return to their home country and leave behind family and friends in the United States. Thus, many TPS holders desperately want to transition to a more stable and permanent immigration status within the United States. Likewise, a sudden end to TPS would be destabilizing for employers, as all workers with TPS status would no longer be able to continue their employment.
Fortunately, the July 2022 policy change by the Biden administration has made permanent resident (green card) status possible for TPS holders, provided they find an employer who will sponsor them. Permanent resident status allows the individual to remain in the U.S., with work authorization, indefinitely. For the majority of TPS holders, switching to permanent resident status was not an option historically because their initial entry into the United States did not involve a formal and valid admission. But pursuant to the new Biden Administration travel document policy, TPS holders may cure this defect from their initial entry. When such persons secure a travel document and use it to re-enter the United States, this new entry will be considered a formal and valid “admission,” making the TPS holder eligible for a green card through the relatively standardized I-485 adjustment of status process. Adjustment of status is available for these people using a technical exception that is only available to those seeking employment-sponsored green cards, essentially forgiving any previous time of being in the U.S. without valid visa status or working without authorization.4
Employers can sponsor TPS employees through the PERM labor certification process, which is available for any type of job as long as the employer can prove to the U.S. Department of Labor that they cannot find enough qualified U.S. workers to fill open positions. In the current economy, with its severe labor shortages in multiple sectors, many employers can readily document a shortage of qualified and willing U.S. workers. Thus, sponsoring TPS holders with work cards can be an attractive way to find and retain workers.
The typical case plan would look like this:
- Begin the green card process for the employee, known as PERM labor certification. This would require obtaining a 9141 prevailing wage determination from the Department of Labor, as well as completing the required labor market test recruitment to document a labor shortage in the sponsored position.
- Assist the employee in applying for TPS travel document.
- When the employee receives TPS travel document, they take a brief trip outside of the U.S. and re-enter using the newly established travel document (creating an “admission” for immigration law purposes).
- Continue with the green card process, culminating in an application to adjust status to green card holder. At the final stage (adjustment of status), the employee will need to show they have an admission to the U.S., which was secured through the TPS travel.
The above case plan process represents a significant new opportunity for employers with labor shortages, as they can attract TPS holders to join their workforce by offering employment-based sponsorship for a green card. Workers could start work immediately using their TPS work card, and the green card process (which could take two-plus years) is a powerful tool to retain the sponsored employees at the company. Employers who sponsor workers for green cards may find that even after the green card is received, the employee often will remain loyal to the company out of gratitude for the green card sponsorship.
Further, sponsored employees can also become the best recruiters for the company, spreading the word to other TPS holders that their employer is willing to do green card sponsorship. The green card sponsorship process also ensures that the company will not suddenly lose their TPS workers if the TPS designation were to abruptly end.
A case study regarding PERM sponsorship of TPS workers
We are familiar with several companies that have used the PERM labor certification process for TPS holders to strengthen their workforce. One company in the landscaping and groundskeeping industry decided to sponsor its current TPS workers after learning that there was a growing political movement to end TPS for El Salvador and Honduras. If TPS ended for those countries, the company stood to lose several employees whose only work authorization was through the TPS program.
The company began green card sponsorship for a group of its employees in 2018, even before the July 2022 policy changes by the Biden administration.5 Several employees have already received their green cards or are in the final stages of the process. The company is now going to use the TPS travel document pathway to sponsor additional employees who did not qualify under the pre-2022 standards.
Other creative workforce solutions
In addition to sponsoring employees from TPS to a green card, there are several other categories of workers who can be sponsored for a green card through the PERM labor certification process. The benefits are similar: The company can use offers of green card sponsorship to attract new workers and to stabilize the workforce by sponsoring current employees who might otherwise lose their work authorization through policy changes.
The following are categories of foreign nationals already in the United States who may be eligible for green card sponsorship through PERM labor certification:
- asylum applicants who entered the U.S. with a visa and timely filed their asylum application;
- individuals who came to the U.S. on humanitarian parole and are maintaining that status (humanitarian parole programs exist for Afghanistan, Ukraine, Venezuela, Haiti, Cuba, and Nicaragua);
- F-1 international students currently working on CPT or OPT (work authorization provided by the school); and
- individuals (including those without current work authorization) who had an I-130 or I-140 visa petition filed for them, their spouse, or their parent prior to April 30, 2001.6
Expanded policies for highly skilled workers
The above options are available for the vast majority of job openings in the economy, but employers seeking highly skilled workers benefit from very narrow policy changes of the Biden administration to facilitate the hiring and retention of highly skilled workers.
In January 2022, the Biden administration issued updated guidance to facilitate the use of O-1 outstanding ability temporary work visas for STEM graduates as well as green card sponsorship through an exemption for PERM labor certification called EB-2 National Interest Waiver (NIW). The EB-2 NIW category has the added appeal that it permits self-petitioning, and F-1 international students in STEM fields particularly have been able to use the updated and more liberalized policies for work authorization. It may prove worthwhile for employers to also screen their workers for individuals who may fall into one of these categories.
Conclusion
Immigration reform through Congress is very much the broader and more significant change the U.S. immigration system needs to increase the supply of workers in the growing post-pandemic economy. In light of the divided government in Washington, however, the Biden administration appears committed to making executive branch policy changes to expand opportunities for employers to sponsor workers.
Some of these options are relatively obscure, but we encourage lawyers in the bar association to work with their employer clients to see if it makes sense to pursue green card sponsorship for current or future workers to better meet the needs of their workforce.
CALLEIGH M. McRAITH is an attorney with Binsfeld Law Firm, PLLC in St. Paul, MN, where she practices immigration law. Her work includes a wide range of employment-based, family-based, and humanitarian immigration petitions.
MISTI ALLEN BINSFELD is the owner and managing attorney of Binsfeld Law Firm in St. Paul, Minnesota, where she practices immigration law. She represents businesses, employees, students, and families.
ROBERT P. WEBBER is an immigration attorney in private practice. More information about his practice is at www.webberimmigration.com.
Notes
1 U.S. Citizenship and Immigration Services, “Policy Memorandum: Recission of Matter of Z-R-Z-C as an Adopted Decision; agency interpretation of authorized travel by TPS beneficiaries,” (7/1/2022), available at https://www.uscis.gov/sites/default/files/document/memos/PM-602-0188-RescissionofMatterofZ-R-Z-C-.pdf.
2 Congressional Research Service, Temporary Protected Status and Deferred Enforced Departure, RS20844 at 7 (4/19/2022), available at https://sgp.fas.org/crs/homesec/RS20844.pdf.
3 In order to qualify for TPS for El Salvador, individuals must prove they have been in the U.S. since at least 2/13/2001. U.S. Citizenship and Immigration Services, https://www.uscis.gov/humanitarian/temporary-protected-status/temporary-protected-status-designated-country-el-salvador (last visited 1/10/2023). See also 66 Fed. Reg. 14214, at 14214 (3/9/2001).
4 See 8 U.S.C. §1255(k), known as INA §245k, which allows for the forgiveness of prior unauthorized work or time out of status as long as the individual has not accrued more than 180 days of unauthorized work or unauthorized presence in the U.S. since their last entry. The travel using the TPS travel document becomes the new last entry, making individuals eligible for adjustment of status post-travel as long as they continue to maintain their TPS status.
5 Although the travel document policy announced in July 2022 created the most recent iteration of the pathway for sponsorship, there were brief windows of similar pathways in the past. For example, for a brief time the 8th Circuit held that the grant of TPS itself constituted an admission, thereby curing the prior entry without valid documents and allowing TPS holders to adjust to green card status with sponsorship. See Velasquez v. Barr, 979 F. 3d 572 (8th Cir. 2020). That pathway closed, however, with the 2021 SCOTUS decision Sanchez v. Mayorkas, which held that the grant of TPS did not constitute an admission. Sanchez v. Mayorkas, 141 S.Ct. 1809 (2021). The employers described here were able to use these previous iterations to sponsor their initial batch of TPS workers.
6 These individuals with visa petitions filed prior to 4/30/2001 are grandfathered into a more generous immigration standard that forgives time in the U.S. without status and work without authorization. 8 U.S.C. §1255(i), known as INA §245(i). To benefit from this generous standard, however, the individual has to find a sponsor either through close family (spouse, parent, etc. with U.S. citizenship or green card holder status) or an employer.