Updated: Feb 21
Immigration laws in the United States have been taken apart and put back together numerous times. They are set to change again under President Biden. Here is what we know of what is coming.
During his Presidential campaign, now President Biden made it clear that, were he elected, he would reform the current U.S. immigration system. On his first day in office, he started realizing these promises through various executive orders, and by releasing the highlights for his overhaul of various immigration laws.
Since his inauguration, President Biden has signed many executive orders, several of which are concerned with immigration. They address immigration and travel, Deferred Action for Childhood Arrivals (DACA) recipients, and redirecting funds previously allocated to the U.S. – Mexico southern border wall. Here is a quick review of five of the orders here:
Order Preserving and Fortifying the Deferred Action for Childhood Arrivals Program (DACA). In enacting this order, President Biden called on the Department of Homeland Security to preserve and fortify DACA, the program that protects immigrants brought to the U.S. as children(“dreamers”) from deportation, directing that it be brought back in line with the Obama administration’s 2012 guidance. It also directs DHS to defer removal of certain dreamers, including those who hold employment authorization.
Proclamation on the Termination of Emergency with Respect to the Southern Border of the United States and Redirection of Funds Diverted to Border Wall Construction. In this proclamation, President Biden terminated the construction of the border wall. The order also includes an “immediate termination” of the national emergency declaration that allowed billions of dollars to be allocated to the building of the wall.
Executive Order on the Revision of Civil Immigration Enforcement Policies and Priorities. This order rescinds Executive Order 13768 of January 25, 2017, which prioritized all undocumented immigrants for removal, increased the use of state and local police to enforce immigration law, and directed ICE to hire additional agents.
End to Ban on Individuals from Certain Muslim-Majority Countries. In 2017, travel and immigration to the United States from Syria, Iran, Iraq, Sudan, Libya, Somalia, and Yemen was restricted. Eritrea, Nigeria, Myanmar, Kyrgyzstan, and Tanzania were added to the list in 2020. The bans prevented individuals from these countries from qualifying for certain immigrant and nonimmigrant visas, including business and employment visas. President Biden formally ended the so-called Muslim ban on January 20, 2021, and directed the State Department to begin processing visas for people from those affected countries. The State Department has also been directed to develop ways to address the harm caused to those who were prevented to coming to the U.S. because of the ban.
Order Reinstating “Deferred Enforced Departure” for Liberians until 2022. This order blocks the deportation of certain Liberian nationals, allowing them to continue in employment-authorized status, with “deferred enforcement departure” extended an additional year, or until June 30, 2022.
It is clear that President Biden is going to continue making major changes to our immigration system. Executive orders are only one of the tools he can use. He is also expected to enact a new immigration reform bill.
Anticipated Immigration Reform Bill
President Biden’s immigration reform bill has not yet been finalized or passed. But, the highlights he released for his far-reaching changes to the U.S. immigration system include:
A path to permanent residence and citizenship for qualifying undocumented foreign nationals and those holding DACA, Temporary Protected Status (TPS), and H-2A status;
Mechanisms to clear extensive green card backlogs in the employment-based and family-based systems;
A streamlined process for graduates of U.S. universities with advanced STEM degrees to obtain permanent residence; and
An increase in Diversity Lottery Visas.
Pathway to permanent residence and citizenship. The anticipated Biden legislation is expected to provide an immediate way for foreign nationals holding DACA, TPS, or H-2A to apply for permanent residence if they were physically present in the United States on or before January 1, 2021. Under this policy, after receiving their green cards, qualifying foreign nationals could apply for citizenship after three years, provided that they meet security and background checks and demonstrate knowledge of English and U.S. Civics.
Employment-based immigration reforms. The forthcoming bill is expected to include provisions to clear backlogs in employment-based immigrant visas, recapture unused visas, reduce lengthy permanent resident wait times, and eliminate the caps put on visas on a per-country basis. It is thought that this will be achieved in part by exempting spouses and children of green-card holders from the annual green card quota, as well as Ph. D graduates working in the fields of science, technology, engineering, and mathematics.
Furthermore, though an increase to the numerical limit placed on H-1B visas is not expected to be included in the bill, it is anticipated that it will include the codification of H-4 employment authorization for spouses of H-1B workers. It is thought that the bill will also create a pilot program that would stimulate regional economic development, give the Department of Homeland Security the authority to adjust green cards passed on macroeconomic conditions, and incentivize higher wages for nonimmigrant, high-skilled visas.
Finally, it is expected that the Departments of Homeland Security and Labor will be required to make recommendations for improving the employment eligibility verification process, as well as providing protections to foreign workers affected by labor violations.
Family-based immigration reforms. The bill is anticipated to clear family-based immigrant visa backlogs by recapturing unused visas from prior years, and by increasing the number of visas allowed per-country. It will put a process in place to allow foreign nationals with approved family-sponsored petitions to join family members in the United States while their green card applications are still pending. And, it will revise immigration laws to explicitly allow LGBTQ+ petitioners to sponsor family members.
Increase in Diversity Lottery Visas, etc. The bill is expected to increase the Diversity Lottery Visa Program from 55,000 to 80,000. Additionally, the three- and ten-year bars for individuals who have been unlawfully present in the United States would be eliminated. Humanitarian program reforms would be implemented, including an elimination of the one-year deadline for filing asylum claims, and an increase in the U visa cap from 10,000 to 30,000.
The bill might be broken into pieces and introduced to Congress a piece at a time instead of all at once. Regardless of the form that it is in, the bill must be sent to Congress where both the House of Representatives and the Senate must pass it in order for it to become law. The House and Senate will debate it and likely provide significant amendments to it before passing it.
At SKV Legal, we are committed to staying up to date on all immigration reforms. Be sure to visit our blog and to keep an eye on our social media for regular updates.
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