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Wednesday, November 11 2020
Biden Immigration Changes We can Expect in January 2021

A Difference in Tone: 

The difference between the two presidents’ rhetoric on immigrants and refugees should be night and day. “Generations of immigrants have come to this country with little more than the clothes on their backs, the hope in their heart, and a desire to claim their own piece of the American Dream,” reads the Biden immigration plan. “It’s the reason we have constantly been able to renew ourselves, to grow better and stronger as a nation, and to meet new challenges. Immigration is essential to who we are as a nation, our core values, and our aspirations for our future. Under a Biden Administration, we will never turn our backs on who we are or that which makes us uniquely and proudly American. The United States deserves an immigration policy that reflects our highest values as a nation.”

What will be the guiding principles of a Biden-Harris administration on immigration? Stephen Miller spearheaded the Trump administration’s immigration agenda, working tirelessly to move the United States as close as possible to a policy of zero immigration. The simplest rule Joe Biden and his team may follow on immigration policy would be to ask: What would Stephen Miller and Donald Trump do? And do the opposite.

Executive Orders, Proclamations and Regulations: 

Analysts believe if the Biden administration is smart, it will make a clean break from the Trump era by undoing all executive orders and proclamations on immigration that are not directly tied to health concerns related to Covid-19. That would include the most high-profile measures, such as the ban on the entry of individuals from primarily Muslim countries.

Undoing the April 2020 immigration proclamation would allow immigrants in the family-sponsored and Diversity Visa categories to enter the United States, once State Department processing is normalized. Reversing regulations, most notably the public charge rule, may take more time and be influenced by court rulings.

Public Charge Rule Changes may take time to fix:

Mr. Biden's team is also planning to begin the process of terminating the "public charge" rules the Trump administration implemented to deny green cards and immigrant visas to applicants who U.S. officials determine rely — or could rely in the future — on government benefits like Medicaid, food stamps and Section 8 housing vouchers.

Because the 2019 rules were instituted through the regulatory process, experts expect their rescission to take longer than that of presidential directives.

H-4 EAD and Per-Country Limits: 

For years, the Trump administration has placed a proposed rule on the regulatory agenda to rescind an existing regulation that allows many spouses of H-1B visa holders to work – called H-4 EAD (employment authorization document). The administration could still attempt to take some restrictive action before Donald Trump leaves office.

A priority for the Biden administration should be to fix processing for H-4 EADs. In a recent lawsuit, plaintiffs argued H-1B spouses cannot renew their H-4 employment authorization documents because USCIS added an unnecessary biometrics requirement and adopted an erroneous interpretation of government regulations by prohibiting automatic extensions of H-4 work authorization.

Biden’s immigration policy document mentions eliminating the per-country limit for employment-based immigrants. Due to per-country limits, an employment-based green card applicant from India can potentially wait decades before gaining permanent residence. Legislation to address the problem passed the House of Representatives, but a series of demands by senators, the latest beings Senator Rick Scott (R-FL), first slowed then blocked the bill. It is unclear whether anything will change this Congress but if major immigration legislation moves next year, fixing the per-country limit is likely to be included. Another standalone bill may be possible as well.

Caps and Limitations on Nonimmigrant Visas:

Mr. Biden has yet to say whether his administration will continue, alter or completely scrap Mr. Trump's pandemic-era limits on immigrant and work visas. Mr. Biden's campaign promised that the former vice president will direct the CDC to review the expulsions policy "to ensure that people have the ability to submit their asylum claims while ensuring that we are taking the appropriate COVID-19 safety precautions."

Extension of Temporary Protected Status (TPS):

Mr. Biden has also pledged to grant Temporary Protected Status (TPS) to certain Venezuelan exiles in the U.S. to shield them from deportation.

León Rodríguez, who led U.S. Citizenship and Immigration Services (USCIS) during the Obama presidency, said a Biden administration should prioritize reviewing Mr. Trump's efforts to end TPS protections for approximately 300,000 immigrants from El Salvador, Haiti, Nicaragua, Sudan, Nepal and Honduras. In September, a federal appellate court allowed the Trump administration to terminate the programs, but TPS beneficiaries are not set to lose their protections until March 2021.

DACA and Dreamers: 

Over the past four years, it took a great deal of legal activity, including a Supreme Court ruling, to protect the legal status of more than 600,000 recipients of the Obama administration’s Deferred Action for Childhood Arrivals (DACA) program. Joe Biden said protecting Dreamers will be a priority. How he protects them will matter.

Biden administration attorneys will need to decide if keeping the current program intact is the best approach legally or if a different administrative approach would work better. Continuing protections for DACA recipients is favored by a 2-to-1 margin among voters, according to poll results released by That does not mean a legislative solution will be easy, particularly one that goes beyond DACA recipients, which the Biden campaign has said he will pursue. Even if Democrats control the Senate at some point during the next four years, some compromise on the scope of a legislative solution (i.e., how many unauthorized immigrants, other immigration measures) is expected to be necessary for a bill to become law.

Refugee Resettlement in the United States:

President-elect Joe Biden has pledged to reassert America's commitment to refugees after the Trump White House's slashing of the resettlement program, part of the current president's anti-immigration drive.

In 2016, President Barack Obama aimed to admit 110,000 refugees. President Trump lowered the cap on refugee admissions every year of his presidency. For fiscal year 2021, he set the cap at 15,000, the lowest on record.

Biden promises to take a starkly different approach from his predecessor: to "set the annual global refugee admissions cap to 125,000, and seek to raise it over time."

For decades, the United States led the world in offering protection to people fleeing persecution in other countries. Now the Biden presidency will mark a return to the political consensus that the U.S. should continue to do so, refugee policy experts say.

Deportation Policy and Priorities:

Mr. Biden will look to implement a 100-day freeze on deportations while his administration issues guidance narrowing who can be arrested by immigration agents.

Obama-era memos that prioritized the deportation of immigrants with criminal convictions, recent border-crossers and those who entered the country illegally more than once were scrapped in 2017 by Mr. Trump so that no unauthorized immigrant would be exempted from being arrested and removed from the country.

At the southern border, Mr. Biden has pledged to discontinue the Trump administration's policy of requiring non-Mexican migrants to wait in Mexico for the duration of their U.S asylum cases. It is unclear, however, how the cases of thousands of asylum-seekers currently waiting in northern Mexico will be adjudicated and whether any of them will be paroled and allowed to continue their proceedings in the U.S.

A source familiar with the Biden team's planning said the incoming administration will withdraw from the three bilateral agreements Mr. Trump brokered with Guatemala, El Salvador and Honduras that allow the U.S. to send rejected asylum-seekers to those countries and have them seek refuge there. 

Posted by: Christopher M. Pogue, Esq AT 04:26 pm   |  Permalink   |  Email
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