On Wednesday November 4, Democrats won control of both houses of Congress in the midterm elections. Republicans have controlled both the House and Senate for the past two years and will remain in control until the newly elected members take office in January. This creates a short “lame-duck” period in which year-end government funding negotiations could provide an opportunity for targeted employment-based immigration changes. No immigration package has been agreed, so employers do not need to change their immigration strategies at this stage. However they should monitor developments and consider which employee populations could be affected if reforms emerge.
Why the midterm result matters for immigration
The November elections will shift control of both the House and Senate to the Democrats in January. Until then, the current Republican-led Congress remains in place and still has significant business to complete, including addressing government funding, which expires on December 11.
The period between an election and the new Congress taking office is commonly referred to as a “lame-duck” session. Although relatively short, lame-duck sessions can be significant because outgoing lawmakers retain their legislative powers and year-end negotiations can create opportunities to reach agreements that were difficult to achieve before an election.
Congress has previously used lame-duck sessions and year-end funding legislation to enact immigration measures. There is currently no indication that congressional leaders or the White House have agreed on an employment-based immigration package. The key question is therefore not whether reform is imminent, but whether the year-end negotiations create the political conditions for targeted measures to advance.
What could change?
Established immigration extenders are among the more likely areas to feature in year-end legislation because Congress has previously dealt with them through the appropriations process. These include supplemental H-2B visa authority, E-Verify, Conrad State 30 and special immigrant religious workers.
A broader agreement could potentially address several issues of greater significance for employers and employees facing lengthy employment-based immigration backlogs:
Congress would not necessarily be starting from scratch. Previous legislation, including the House-passed Build Back Better bill in 2021 and the EAGLE Act of 2022, contained developed language addressing some of these concepts. However, this does not mean equivalent measures have sufficient political support in the current Congress.
What could determine whether anything happens?
The first signal to watch is the shape of the December government-funding legislation. A negotiated omnibus, several “minibuses”, or a broader appropriations package could create room for immigration provisions. A relatively clean continuing resolution would leave considerably less scope for negotiation.
The election result also creates competing political incentives. Republican leaders may have reason to complete selected legislative priorities while their party still controls Congress, while Democrats may prefer to negotiate once they take control in January. Senate procedure means bipartisan support would remain important for many measures even after the change in congressional control.
The Trump administration is another important part of the equation. Recent employment-immigration policies have emphasized protection of US workers, wages, outsourcing and alleged program abuse. At the same time, President Trump has spoken favorably about retaining talented foreign graduates of US universities and admitting workers with skills he considers insufficiently available in the domestic workforce.
Any viable employment-based compromise could therefore combine limited immigration benefits with measures addressing wages, recruitment, displacement, fees, compliance or enforcement. There is precedent for this approach: in 2004, Congress combined additional H-1B visa availability for certain graduates with US advanced degrees with additional fees, compliance requirements and enforcement provisions.
Taking the above considerations into account, it is unlikely that immediate changes to employer immigration programs will be required. There is currently no defined employment-based immigration package, and employers should continue progressing cases based on existing immigration rules and timelines rather than planning around reforms that may not materialize.
However, the coming weeks warrant closer attention. Measures affecting visa availability or employment-based green-card backlogs could create opportunities for some employees, while any negotiated compromise could also introduce additional employer requirements.
Employers may consider any of the following:
In the meantime, employers should continue operating under the existing immigration framework and also understand where potential reforms could create opportunities or additional obligations and be ready to respond if concrete proposals begin to advance.
Vialto is closely monitoring the year-end legislative process and the potential implications for employment-based immigration. We can help employers:
For a deeper discussion on the above, please reach out to your Vialto Partners point of contact, or alternatively:
Angelo Paparelli
Partner, Vialto Law (US) LLP
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