Within hours of his inauguration on January 20, 2021, President Biden took several important steps to reverse the previous administration’s restrictive immigration measures.  As detailed below, President Biden signed several critical Executive Orders, released a summary of immigration legislation (the U.S. Citizenship Act of 2021) he will present to Congress, and put a hold on all regulations the previous administration tried to implement after his election but before he formally took office. 

1. Immigration-related Executive Orders Signed on Day 1 of Biden Administration

   a. Ending Discriminatory Bans on Entry to the U.S.

On his first day in office, President Biden issued a Proclamation, ending his predecessor’s earliest actions restricting immigration.  A series of Presidential Proclamations issued by the previous administration blocked travel to the United States for nationals of five majority-Muslim nations (Iran, Libya, Somalia, Syria, and Yemen), while also restricting travel by nationals of Venezuela and North Korea.  Justified on national security grounds, these travel bans were devastating to families that were separated on the basis of their national origin and religion, and actually compromised our national security efforts.  

In his Proclamation, President Biden urges the State Department to resume visa processing for nationals of these countries and to clear the backlog of visa applications, seeking waivers of the travel bans, to the extent possible given the global pandemic.  Waiver applications were notoriously difficult to obtain and faced very long processing times. 

b. Preserving Deferred Action for Childhood Arrivals (“DACA”). 

President Biden also has issued an Executive Order to preserve and strengthen the DACA program, which protects foreign nationals who were brought to the United States as children and who have lived here without lawful status.  The Trump administration had made several attempts to end the program, which had been thwarted by the judiciary, including the U.S. Supreme Court.  If you would like to learn  more about DACA, I have a podcast interview with a DACA recipient and a lawyer who had been actively involved with protecting DACA from the Trump Administration’s efforts to end the program.

c. Revising Civil Immigration Enforcement Priorities 

President Biden has revoked the previous administration’s Executive Order, Enhancing Public Safety in the Interior of the United States, which made anyone living unlawfully in the United States an enforcement priority for purposes of deportation.  This type of sweeping policy caused considerable fear and anxiety in immigrant communities.  Before the Trump administration, the U.S. government focused on deporting violent criminals and repeat offenders of immigration laws so as to minimize the break-up of mixed status families and the impact on their communities.  

In his Executive Order, President Biden reasons that the enforcement of our immigration laws must balance the value immigrants bring to families, communities, businesses, and the economy.  

d. Ending the “National Emergency” at the Southern Border

President Biden has ended the “National Emergency” at the southern border as declared by the previous administration and will no longer allow funding to be diverted to the construction of the wall.  In his Proclamation, President Biden notes that “building a massive wall that spans the entire southern border is not a serious policy solution,” and an inappropriate use of US taxpayer money.   

e. Calculating the Census to Include all Residents, Regardless of Immigration Status. 

President Biden has clarified by Executive Order that in order for the decennial census to be accurate, all residents must be included in the calculation regardless of immigration status.  The census, which is done every ten years, is crucial to our representative government because the number of residents in a state determines the number of representatives a state can have in the House of Representatives in Congress.   It also plays a key role in federal funding for roads, transportation, public safety, etc.  The previous administration had tried to exclude anyone without lawful immigration status from the census and required the Census Bureau to rely on records that were not necessarily accurate.  

2. An Ambitious Immigration Bill for Congress

In addition to swiftly taking action through Executive Orders, President Biden also has proposed a comprehensive immigration bill, The U.S. Citizenship Act of 2021, which he is sending to Congress to “modernize our immigration system.” Specifically, this bill seeks to achieve the following:

• Provide clear pathways to citizenship for undocumented individuals, such as Dreamers, individuals with TPS, and immigrant farmworkers.

• Help families stay together by clearing backlogs, recapturing unused visas, eliminating lengthy wait times, and increasing the per-country visa caps. 

• Support our economy by clearing employment-based visa backlogs, eliminating per-country visa caps for employment-based green cards, allowing foreign graduates of US universities with STEM degrees to stay in the US, and grant work authorization to dependents of H-1B visa holders. 

• Prioritize smart border controls.

• Address root causes of migration by increasing assistance to El Salvador, Guatemala, and Honduras. 

• Improve the immigration courts and protect vulnerable individuals. 

• Support asylum seekers and other vulnerable populations. 

With Democrats holding a narrow majority in Congress, many parts of Biden’s proposed legislation could be passed.  This is a slow process and could take longer because getting the pandemic under control is an immediate priority, but the change in leadership in Washington, DC, is a source of real optimism.  

Of course, Republican lawmakers have already responded to President Biden’s proposed legislation by introducing a pair of bills to restrict immigration.  One bill proposes to completely eliminate the green card lottery, which allows up to 55,000 immigrants from underrepresented countries to come to the United States each year.  The second bill would prevent anyone convicted of a crime from obtaining asylum.  

3. Putting a Hold on Trump’s Last-Minute Regulations

In the days leading up to President Biden’s inauguration, the previous administration released several immigration-related regulations, such as the DOL’s plan to reformulate the way it calculates prevailing wages for the H-1B, E-3 and immigrant visas, and the ranking of H-1B registrations for the annual lottery by salary level.  President Biden has paused these regulations so the administration can review them in order to determine whether they further his executive orders, need to be withdrawn, or undone through a new notice and comment process. 

The new administration is definitely reversing the anti-immigrant and restrictionist policy stand of the last four years.  We look forward to keeping you up to date on all these positive changes.  In the meantime, please do not hesitate to reach out to us with any questions or concerns.  

This update is for informational purposes only. Should you wish to discuss this development further, please do not hesitate to contact me.