The incoming Biden Administration has set forth an ambitious plan to reform the nation’s immigration system. His proposals, if successfully enacted, will dramatically expand programs to benefit immigrants, increase nonimmigrant visas, strengthen asylum protections, boost operational efficiency, and hopefully ease backlogs that have stymied the U.S. immigration system for years. Some of Biden’s immigration proposals are extensive and, naturally, will require Congressional support, which may be lacking if the Republican party maintains control of the Senate, which will come down to the closely covered Senate runoffs in Georgia set for January 5, 2021. Biden positions himself as a moderate Democrat with a long-history of working “across the aisle,” someone dedicated to healing the political divides in our country. But given the tumultuous nature of the 2020 election season, ongoing unwillingness of Republican leadership to acknowledge Biden’s victory, and the chance of a divided congress with an opposition unwilling to work with his Administration, there may not be much appetite (or capacity) for Congressional compromise.
Plans for Immediate Executive Actions
There are a number of actions that the Biden Administration could take within the first 100 days (or later), in the form of executive orders, that would signal a major shift away from the policies and priorities of his predecessor. Below are a sample of the many commitments President-elect Biden has promised immediately upon taking office in January 2021, and which will not require Congressional action:
- End the Wall. Biden has promised to reverse President Trump’s diversion of funds to construct a wall along the southern border. On February 15, 2019, President Trump issued a Proclamation citing the National Emergencies Act, and ordered the diversion of billions of dollars of funds to the construction of his infamous border wall. These funds had been appropriated to the U.S. Department of Defense for military construction. Biden has promised to reverse this action immediately.
- Reinstate the DACA. Deferred Action for Childhood Arrivals (DACA) was created by executive order of President Obama in 2012 and provides protection from deportation for hundreds of thousands of foreign nationals who were brought to the United States without authorization as children. The DACA program allows qualified applicants to apply for employment authorization and other benefits. The Trump Administration terminated the program and ceased receiving any new DACA applications. However, in a major rebuke to the Trump Administration, the U.S. Supreme Court blocked its plan to dismantle the DACA program. This June 2020 decision is a timely herald to the Biden Administration’s plans to reinstate the DACA program completely.
- Rescind Muslim Ban. One of President Trump’s first actions as Commander and Chief was to issue the “Muslim Ban” via executive order (EO 13769). Following intense protest and several injunctions, the Trump Administration amended the Muslim Ban via EO 13780 and Presidential Proclamation 9645, which the Supreme Court ultimately upheld as a legitimate exercise of Executive power. As a result, foreign nationals from five Muslim-majority countries — Iran, Libya, Somalia, Syria, and Yemen — and also nationals from North Korea and Venezuela, from entering the United States on most or all types of visas, with limited exceptions, even if they have spouses, children, parents, or other family members in the United States. Biden has vowed to immediately rescind this executive order.
- End Policy of Family Separation. By far one of the Trump Administration’s most egregious and cruel policies, family separation at the southern border has caused untold harm to parents and children – many of whom remain separated to this day. In addition to ending this policy, the Biden Administration will strive to reunify separated parents and children.
- Improve and Enhance Asylum, Refugee, TPS Systems. Through “metering” – or, the act of only permitted a limited number of asylum applications in a given day – as well as expanding prolonged detention, lowering the number of refugees the United States will admit per year, and phasing out Temporary Protected Status (TPS), the Trump Administration has caused appreciable harm to vulnerable foreign nationals seeking protections. In response, the Biden Administration has vowed to eliminate “metering,” improve case management systems and invest in more cost-effective alternatives than detention, increase the number of refugees it will admit, and restore TPS protections.
- Reverse the Public Charge Rule. Someone who is deemed likely to become dependent on the state – or, a public charge – has always face obstacles to obtaining a green card. In 2020 the Trump Administration implemented a new rule that expanded the scope of the government’s inquiry, thereby making it even more difficult for foreign nationals to assume lawful permanent residence. The Biden Administration has deemed these enhanced measures to be contrary to our country’s values, and therefore has promised to reverse the rule.
In addition to these actions and others, two recent moves by the Trump administration could also be on the chopping block following Biden’s inauguration – that is, if they have not already been enjoined in federal court. On October 7, 2020 the U.S. Department of Labor (DOL), without a notice or comment period, introduced a dramatically revised system for determining prevailing wages, used by the DOL in several foreign worker programs, including the H-1B, H-1B1, E-3, and PERM Labor Certification processes. The new prevailing wage structure raises the average prevailing wage in each of the four wage levels by thirty percent or more, making it more difficult for many smaller employers to meet the wage requirements for many occupations. Later, on November 2, 2020, the Trump administration issued a proposed rule that would prioritize H-1B Cap Lottery Registrations based on wage level, thus giving priority to those registrations by employers who are paying the highest prevailing wages. Green and Spiegel addressed both of these measures in prior posts. If enjoined, the Biden Administration almost certainly will not pursue further action in these matters.
Aims to Modernize the Immigration System
On a larger scale, in a lengthy policy statement, the Biden campaign has pledged a dramatic overhaul of the nation’s current immigration system, which has been stymied for many years by inefficiencies, backlogs, ineffective enforcement priorities, underfunding, and a visa system that does not effectively address the needs of the U.S. economy. To make such sweeping changes, the Biden Administration will require more than executive action alone, meaning both houses of Congress will have to sign-off on many of the incoming administration’s ambitious plans.
For example, Biden will require congressional support to expand the numbers of high-skilled worker visas (H-1B), provide pathways to legal status and citizenship for farmworkers and undocumented individuals currently present in the United States, increasing the cap for employment-based green cards, eliminating all caps for U.S. PhD graduates of STEM fields, or allowing states and municipalities to determine location-specific immigration needs and request visa allocation to meet those needs.
Regarding the nation’s family-based immigration system, President-elect Biden proposes a creative solution to address the lengthy wait times (in some cases 20 years or more) many green card applicants face to be reunited with family: permit an approved, family-based applicant to receive a temporary nonimmigrant visa while waiting for the final green card is processed, thus uniting families together sooner.
These are but a sample of the ambitious plans the Biden Administration has proposed to reform the U.S. immigration system. President-elect Biden will be able to accomplish many of these goals with the stroke of a pen within the first 100 days he is in office. However, to effect the long-lasting reform that is needed will mean working with Congress, which will likely pose an obstacle to Biden’s ambitious plans, requiring careful negotiation, and resulting, perhaps, in a less dramatic immigration overhaul than he might want.
Green and Spiegel will continue to provide updates to changes in immigration law via executive order and congressional statutes. Please contact us if you have any immediate need for assistance.