Immigration Law Under Biden - What Changes Can We Expect?
When he enters the White House, President elect Joe Biden will likely seek to reverse much of President Donald Trump’s immigration legacy and push ahead with his own agenda. On Joe Biden’s campaign website it proclaims: “Immigration is essential to who we are as a nation, our core values, and our aspirations for our future … The United States deserves an immigration policy that reflects our highest values as a nation.” Joe Biden has stated that he plans to use executive authority to roll back many of President Trump’s most controversial immigration orders and restore the values that reestablish America as a welcoming nation that embraces immigrants, protects those fleeing persecution, and promotes immigrant participation in our shared prosperity.
The Law Office of Troy & Neils welcomes a new administration and is hopefully optimistic of the following changes in five key immigration policy areas:
1. Protect Deferred Action for Childhood Arrivals (DACA) and offer them a path to Permanent Residency/Citizenship
The Obama-Biden administration created DACA in 2012 to protect undocumented children. This created a legal status for these children who were brought here by their parents, allowed them to work, attend college, and become teachers, firefighters, and doctors. We expect to see Biden quickly reinstating DACA and continuing to strive to protect their families. His web site states:
“The Trump Administration made the cruel and counterproductive decision to terminate DACA, throwing into turmoil the lives of millions of Dreamers. Dreamers and their parents should have a roadmap to citizenship through legislative immigration reform. But in the meantime, Biden will remove the uncertainty for Dreamers by reinstating the DACA program, and he will explore all legal options to protect their families from inhumane separation.”
DACA has been relentlessly attacked by the Trump administration, leaving hundreds of thousands of young people to live in a perpetual state of uncertainty. Biden has promised to fully reinstate DACA upon taking office and to send a bill to Congress to make its protections permanent. The President elect has plans to send an immigration bill to Congress on his first day in office in January that includes a pathway to citizenship for the estimated 11 million immigrants living in the country illegally, a campaign official told Reuters.
2. Reform, and streamline visa programs for temporary workers including H-1B Visas
Temporary workers play important roles in almost every industry, from technology to farming and hospitality to medicine. Recently, both the Department of Labor and USCIS implemented new rules for hiring foreign workers, almost overnight. These agencies face litigation over the degree of notice provided for these changes and the burden the rules place on businesses and visa holders.
These new rules have been particularly harmful to H-1B Visas since the the H-1B Visa remains the only practical way for many people to work long-term in the United States, including international students. Biden has not said whether he would roll back the measures if elected, but his campaign website said he would work with Congress to reform the H-1B visa program to ensure the visas are “aligned with the labor market and not used to undermine wages.”
The administration must ensure that H-1B adjudications are consistent with USCIS statute and regulations, such that it is a viable and flexible option for U.S. employers of all sizes and across all industries while exploring opportunities to address the needs of U.S. employers through alternative mechanisms. The administration should halt or rescind regulations published in the fall of 2020 on the H-1B program that will likely will curb U.S. companies’ use of skilled foreign workers, especially in the tech industry. These regulations significantly increase the minimum wages companies must pay to workers enrolled in the program. The rules also narrow the definition of “specialty occupations” eligible for the visas.Biden has stated that he will work with Congress to first reform temporary visas to establish a wage-based allocation process and establish enforcement mechanisms to ensure they are aligned with the labor market and not used to undermine wages. Then, Biden will support expanding the number of high-skilled visas and eliminating the limits on employment-based visas by country, which create unacceptably long backlogs.
3. Restore the U.S. Asylum/ Refugee Systems
Trump largely dismantled the U.S. asylum system through the implementation of disastrous policies and restrictions limiting who can seek asylum. Thousands of asylum seekers have been forced into Mexico to wait for their U.S. court hearings under the Trump administration’s Migrant Protection Protocols. This makes them vulnerable to cartel extortion, assault, and murder—all for an asylum court date that might never arrive.
Qualifications for asylum have also changed. Victims of gang and gender-based violence do not qualify for asylum—even if such violence isn’t prosecuted in their countries of origin. LGBTQ individuals have also faced increased challenges to seeking asylum in the United States.
Biden plans to reverse these changes, beginning with the Migrant Protection Protocols program.
He also plans to do away with “metering,” a Trump policy that limits the number of people who can request asylum at ports of entry along the U.S.-Mexico border each day. Tens of thousands of vulnerable people have been turned back into Mexico where they must wait to begin the process of applying for asylum.
Humanitarian groups along the border will also receive funding from the U.S. government to better serve migrants. Biden will give much-needed resources to shelters, non-governmental aid organizations, nonprofits, and refugee assistance agencies so they can support migrants while their asylum claims get processed.
Biden has said he would raise the annual ceiling for refugee admissions to 125,000 but has not said how quickly that would happen. Trump has sharply curbed refugee admissions and his administration announced in September that it would allow no more than 15,000 refugees in the 2021 fiscal year, a figure Biden will likely increase.
4. Rescind Trump’s Travel Bans
On Day One of his presidency, Biden intends to rescind Trump’s travel bans on travelers from 13 countries, most of them either majority-Muslim or African nations.
Shortly after taking office in 2017, Trump issued an executive order that banned travelers from seven majority-Muslim nations from entering the United States. The administration reworked the order several times amid legal challenges and the Supreme Court upheld a version of it in 2018. The countries subject to entry restrictions have changed over the years.
Biden states that “… anti-Muslim bias hurts our economy, betrays our values, and can serve as a powerful terrorist recruiting tool. Prohibiting Muslims from entering the country is morally wrong…” The bans could be easily undone, as they were issued by executive order and presidential proclamation and we hope and anticipate that the program often referred to as “The Muslim Ban” will end on Biden’s first day in office.
5. End the separation of migrant children from their parents and the mass incarnation of immigrant children
Biden has pledge to immediately reverse the Trump Administration's cruel and senseless policies that separate parents from their children at our border, including ending the prosecution of parents for minor immigration violations as an intimidation tactic, and prioritize the reunification of any children still separated from their families.
The Trump Administration has also sought to hold children in detention indefinitely. But proven alternatives to detention and non-profit case management programs, which support migrants as they navigate their legal obligations, are the best way to ensure that they attend all required immigration appointments. These programs also enable migrants to live in dignity and safety while awaiting their court hearings–facilitating things like doctor visits, social services, and school enrollment for children. Evidence shows that these programs are highly effective and are far less expensive and punitive than detaining families. Biden will codify protections to safeguard children to make sure their treatment is consistent with their best interest and invest in community-based case management programs.