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...

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