The Biden Administration appears to be prioritizing immigration reform, with a proposed comprehensive immigration bill, a series of executive orders, and quick action to address some of the Trump Administration’s policies. Below we have summarized the updates that have occurred over the first weeks of the Biden Administration. How do these actions affect your immigration journey? Make sure you tune in every Wednesday for a live webinar with Attorney Lakshmi Challa to craft your immigration strategy!
From the White House
Ending Discriminatory Bans on Entry to the United States
On his first day in office, President Biden issued a proclamation titled Ending Discriminatory Bans on Entry to the United States, that revoked Executive Order 13780, Proclamation 9645 (Muslim Travel Ban 3.0), Proclamation 9723 (Removing Chad from Muslim Ban), and Proclamation 9983 (Africa Travel Ban). The Proclamation stated that the Secretary of State will direct all embassies and consulates to resume visa processing, consistent with applicable law and visa processing procedures, including any related to COVID-19.
Department of State issued guidance on January 22, 2021 stating that it will undertake a review to ensure that immigrant visa (IV) applicants denied on the basis of Proclamations 9645 or 9983 will have their cases reconsidered. The review will consider reopening cases, whether additional fees are necessary, and develop a plan to expedite these cases.
February 2, 2021 Executive Orders on Immigration
While additional immigration executive orders were initially planned for January 29, 2021, the orders were delayed until the Senate could confirm new Department of Homeland Security Secretary, Alejandro Mayorkas. After his confirmation on Tuesday, February 2, 2021, President Biden signed three executive orders to address major immigration challenges.
“In keeping with our commitment to protect the American people, our homeland, and our values, the U.S. Department of Homeland Security welcomes the President’s action to ensure that our immigration system represents the empathy of the American people.”
-DHS Secretary Alejandro Mayorkas
Executive Order on Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans
This executive order focuses on welcoming new Americans and encouraging naturalization.
- Encourage strategies to promote integration, inclusion, and citizenship
- Welcome and support immigrants, including refugees
- Identify and remove barriers to immigration benefits and fair, efficient adjudications
- Rescind rules that fail to promote access to the legal immigration system
- Increased fee rule mentioned as an example
- Immediate review of public charge rule
- Promote naturalization and reduce processing times and barriers
- Review of process with emphasis on N-400, fingerprinting, background and security checks, interviews, civics, English language tests, oath of allegiance
- Make process more accessible by potentially reducing naturalization fee and fee waiver process
- Review policies and practices regarding denaturalization and passport revocation
- Revokes May 2019 memo: Enforcing the Legal Responsibilities of Sponsors of Aliens
Executive Order on Creating a Comprehensive Regional Framework to Address the Causes of Migration, to Manage Migration Throughout North and Central America, and to Provide Safe and Orderly Processing of Asylum Seekers at the United States Border
- Manage migration throughout North and Central America
- Address root causes of migration
- Expand Central and North American countries’ asylum systems and resettlement capacity
- Increase opportunities for populations to seek protection closer to home
- Enhance lawful pathways for migration
- Restore our own asylum system
- Promote human rights, labor rights, combat corruption, violence, economic insecurity
- Emphasis on El Salvador, Guatemala, Honduras
Executive Order on the Establishment of Interagency Task Force on the Reunification of Families
- Creates task force to:
- Identify all children separated from their families at the U.S. Mexico border since January 20, 2017
- Facilitate reunification of children with families
- Consider parole, visas, immigration benefits
- Evaluate services and support required, including trauma and mental health services
- Reports on progress
- Final recommendation to ensure the federal government does not repeat policies and practices leading to family separation
“As we undertake this work, it’s critical that Congress build on these executive actions by passing the legislation proposed by President Biden to modernize our immigration system, responsibly manage our border, and create an earned path to citizenship.”
-DHS Secretary Alejandro Mayorkas
President Biden’s Proposed Immigration Reform Plan
Although President Biden introduced his own immigration reform priorities, sources say the White House will let Congress take the lead. Sources also indicated a willingness to progress reform on a segmented basis instead of pushing for a single comprehensive reform bill. The summary of his plan includes:
- Eight-year path to citizenship for undocumented immigrants
- If they can pass background checks and pay taxes, undocumented individuals may be able to apply for green cards
- Changes the word “alien” to “noncitizen” in our immigration laws
- Family-based reform to clear backlogs
- Recapture unused visas
- Eliminate lengthy wait times
- Increase per-country visa caps
- Eliminates 3 and 10-year bars
- Allows immigrants with approved family-sponsored petitions to join their family in the U.S. on a temporary basis while they wait for green cards to become available
- NO BAN Act Prohibits discrimination based on religion and would increase Diversity Visas available
- Clear employment-based visa backlogs
- Recapture unused visa
- Reduce wait times and eliminate per-country visa caps
- Improve pathway for graduates of U.S. universities to stay in the U.S.
- Authorizes dependents of H-1B visa holders to work
- Prevent children from “aging out” of the system
- Pilot program to stimulate regional economic development
- Improve employment verification process and protect workers from workplace retaliation
- Border security improvements with new screening technologies
- Identify narcotics and other contraband
- Scanning technologies for all ports of entry
- Crack down on criminal organizations
- Aid to Central America to address underlying causes of migration
- Establish Designated Processing Centers throughout Central America to assist displaced persons
- Improve immigration courts
- Reduce backlogs
- Improve case management and technology
- Support asylum seekers and other vulnerable populations
- Protections for U visa, T visa, VAWA applicants
- Increases cap from 10,000 to 30,000
Department of Homeland Security (DHS) & USCIS Actions
The rule that would have removed H-4 EADs for certain eligible spouses was withdrawn by Biden Administration’s Department of Homeland Security. Eligible H-4 spouses can continue to renew and apply for work authorization.
USCIS Announces Delayed Effective Date for H-1B Wage-Based Selection Rule
USCIS announced that there will be a delay of the effective date for the final rule Modification of Registration Requirements for Petitioners Seeking To File Cap-Subject H-1B Petitions. The final rule was published on January 8, 2021, and was scheduled for implementation on March 9, 2021. The rule plans to change the H-1B cap selection process from a random selection to one based on prevailing wage levels. The rule would prioritize the highest-paid positions and according to USCIS, would “help counter the downward pressure on the wages of U.S. workers that is created by an annual influx of relatively lower-paid, new cap-subject H-1B workers.”
The official notice delaying the effective date will be published on Monday, February 8, 2021. The advance copy notes that the rule will be effective December 31, 2021 since USCIS will not “have adequate time to complete system development, thoroughly test the modifications, train staff, and conduct public outreach needed to ensure an effective and orderly implementation of the H1B Selection Final Rule by the time the initial registration period will be open for the upcoming fiscal year (FY) 2022 H-1B cap season.”
Read more: H-1B Cap Registration Selection to Remain Random (For Now)
Esther Olavarria, deputy director of the White House Domestic Policy Council, and one of the president’s top immigration advisers stated that President Biden plans to sign orders to:
- Rescind proclamation requiring health insurance or demonstrating the ability to pay for healthcare
- Rescind proclamation that prohibited entry of immigrants and nonimmigrants deemed to present a risk to the U.S. labor market (COVID-19 proclamation that was extended by Trump administration through March 31).
There is no predicted timeline for these actions. We expect to see a strong push for Congress to act on the proposed immigration reform bill, but there are a number of subjects on the schedule that may push the timeline out to later in the Biden Administration’s tenure.
Don’t forget to register for Challa Law Group’s webinar series, where Managing Attorney explores strategies for navigating the new immigration challenges and answers your questions live. Join us every Wednesday at 12 PM EST.
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