President Biden’s Immigration Updates & Proposed Immigration Legislation
James K. Gotcher, Senior Partner
Brandon D. Neuman, Attorney
Katie W. Wu, Attorney
Although having only been recently inaugurated as the 46th president of the United States on January 20th, 2021, President Joseph R. Biden immediately began the rollout of his immigration agenda, promising an end to the strict immigration policies of the preceding Trump Administration. In his first day in office, President Biden signed a series of executive actions and memoranda that reversed the course of immigration, including, but not limited to:
Reversing the travel ban on predominantly Muslim countries. In an executive order, President Biden moved to repeal a prior executive order from the Trump Administration that restricted entry into the United States from predominantly Muslim countries. In addition, he instructed the State Department to restart visa processing for affected countries and called for a review of other Trump administration “extreme vetting” practices. Following this executive order, the Department of State confirmed that it can immediately process visa applications for individuals from affected countries (Burma, Eritrea, Iran, Kyrgyzstan, Libya, Nigeria, North Korea, Somalia, Sudan, Syria, Tanzania, Venezuela, and Yemen). However, due to the COVID-19 pandemic, U.S. embassies or consulates may not be able to immediately schedule all affected applicants for visa interviews.
Regulatory Freeze Pending Review. This freeze memorandum will pause any new regulations from moving forward and provide the incoming administration an opportunity to review any regulations that the Trump administration tried to finalize in its days. It directs, in part, that 1) all rules pending at the Federal Register that have not been published must be immediately withdrawn and 2) agencies must “consider” postponing the effective dates for regulations that have been published, but not yet taken effect, for 60 days from the date of this memorandum. As a result, the modified version of the “Strengthening the H-1B Nonimmigrant Visa Classification Final Rule,” sent to the Federal Register on January 15, 2021, but not yet published, will be withdrawn. In addition, any final rule that has already published, but not yet taken effect may upon further agency action be postponed for until March 21, 2021, including the H-1B Wage Selection Final Rules. The two bulletins clarifying final requirements for LCAs by secondary employers and on H-1B program obligations for common-law employers published by the Department of Labor on January 15, 2021, will likely be withdrawn as well. However, one of the critical takeaways is that although the H-1B Wage Selection Rules “may” be postponed, this memorandum does not rule out the possibility that the rules may still take effect in this year’s upcoming lottery in 2021. It is critical that employers and their counsel plan ahead for the possibility that the probability for the H-1B cap lottery selection process may still be dictated by wage levels.
Preserving the Deferred Action for Childhood Arrivals (“DACA”) program. The future of this program, which shields undocumented immigrants who came to the United States as children from deportation, has been in question for the past several years. President Biden signed a presidential memorandum directing the Homeland Security secretary, in consultation with the attorney general, to take actions preserving the program.
Maintained the travel ban for certain foreign nationals in Europe’s Schengen area, Ireland, the United Kingdom, Brazil, and China. The Biden administration did not remove the travel ban that the Trump administration imposed upon Europe’s Schengen area, Ireland, the United Kingdom, Brazil, and China. The current travel ban is set to expire on March 31, 2021, but the Biden administration stated that future decisions regarding the travel ban will be made based on advice from public health officials. At this time, it is possible to ask the local US embassy for a national interest exception, but the decision of whether to approve that exception rests exclusively with a visa officer. As of January 25, the Biden administration plans to impose a similar travel ban for foreign nationals traveling from South Africa.
Maintained the visa ban for new visa applicants for H-1B and L-1 visas. The Trump administration’s ban on issuing H-1 and L-1 visa stamps to new visa applicants is currently set to expire on March 31, 2021. At this time, it is possible to file for a national interest exception to obtain a visa stamp from the embassy or consulate. However, the decision of whether to approve that exception rests exclusively with the visa officer.
Maintained and Expanded a COVID test requirement for travel to the United States. The US Center for Disease Control currently requires proof of a negative COVID-19 test for all air passengers arriving from the United Kingdom to the United States. Starting on January 26, 2021, all travelers from any foreign country who are arriving in the United States will be required to present proof of a negative COVID-19 test. The negative test must be completed during the three (3) calendar days preceding the flight’s departure from any foreign country.
On his first day in office, the Biden Administration also announced that it will send an immigration reform bill, the U.S. Citizenship Act of 2021, to Congress in the coming days. Although the full text of the bill is not yet available, the new Administration issued a summary, highlights of which are included below:
Pathway to Permanent Residence and Citizenship: The proposed legislation would provide undocumented foreign nationals who were physically present in the United States on or before January 1, 2021, with temporary status; which includes work and travel authorization. In five years, they would be eligible to apply for green cards if they pass certain background checks and pay their U.S. taxes. After 3 years of being a permanent resident, they are eligible to apply for citizenship. Moreover, individuals currently holding DACA, TPS, or H-2A status will be immediately eligible for permanent residency and do not have to wait 5 years to apply. The bill also proposes the creation of a waiver system that would permit certain individuals who were deported during the Trump Administration to apply under this program if they meet other requirements and were physically present for at least three years prior to their removal.
Elimination of the three- and ten-year bars for individuals who have been unlawfully present in the United States. This goes hand in hand with amnesty as it eliminates unlawful presence as an obstacle for many undocumented individuals in the United States.
Improve immigration courts and clear out backlogs.
Modify asylum processes and add more resources to clear out backlogs.
Family-based Immigration Reforms: Family-based backlogs would also be cleared through the recapture of unused visas, the elimination of lengthy wait times, and the increase in per-country visa caps.
Employment-based Immigration Reforms: Similar to the family-based immigration reforms for employment-based immigrant visas, the bill also includes provisions to clear visa backlogs, recapture unused visas, reduce lengthy wait times, and eliminate per-country immigrant visa caps. On the nonimmigrant visa matters, the administration mentions that they intend to make it easier for Ph.D. graduates working in the science, technology, engineering, and mathematics field (“STEM”) to stay in the United States. Although an increase to the H-1B numerical limit is not included in the legislation, the bill would include the codification of H-4 employment authorization for certain spouses of H-1B workers.
Border Control: The bill takes a different approach on border wall enforcement by investing heavily in adding technology to border security that is intended to expedite screening and enhance the ability to identify narcotics and other contraband found at the port of entry. It would also like to develop more standards for CBP and how they engage people including those in custody, such as children.
Address migration problems abroad: The bill calls for an examination as to why individuals are fleeing their home countries in Central and South America and increase assistance to these countries.
While this is an exciting opening move, there is still a long road ahead and this is far from a done deal. The bill is expected to undergo significant debate and amendments. Although its prospects for passage are not clear, the bill provides an exciting roadmap of what the Biden Administration has planned for its immigration agenda. We will continue to provide updates as they develop in the coming weeks.
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