Following the inauguration of President Joe Biden and Vice President Kamala Harris, President Biden signed several executive orders related to immigration. And, as promised by the Biden transition team, the Biden administration has sent a sweeping immigration reform proposal to Congress, where the effort to pass the bill will be led by Senator Robert Menendez of New Jersey. We provide below a summary of significant executive actions related to immigration, as well as a summary of the key points in the legislative proposal. We also summarize the status of certain Trump administration immigration rules post-inauguration.
REPEAL OF THE ‘MUSLIM BAN’
President Biden has revoked the Trump administration’s travel and immigration restrictions on a group of 13 countries, most of which are predominantly Muslim or African. The ban impacted nationals of the following countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, Yemen, Nigeria, Myanmar, Eritrea, Kyrgystan, Sudan, and Tanzania.
The order instructs the US Department of State to prepare a proposal for reconsideration of visa applications that had been previously denied under the ban, and a plan to ensure that visa applicants who wish to reapply are not prejudiced by a prior visa denial under the ban.
DEFERRED ACTION FOR CHILDHOOD ARRIVALS/ACTION FOR DREAMERS
By executive action, President Biden has ordered the US Departments of Justice and Homeland Security to take "all appropriate actions" to safeguard the Obama-era Deferred Action for Childhood Arrivals (DACA) program that offers works permits and deportation relief to more than 640,000 undocumented immigrants brought to the United States as children (so-called “Dreamers”). Many companies have employees who hold DACA status, but this benefit has been under threat of rescission in recent years. This executive order is meant to protect DACA recipients; as discussed below, immigration legislation proposed by the Biden administration would offer permanent residence (green cards) to DACA beneficiaries under certain conditions.
100-DAY PAUSE ON DEPORTATIONS
The Biden administration has also directed Immigration and Customs Enforcement (ICE) to pause certain deportations for 100 days. During this time, ICE has been directed to undertake a comprehensive review of enforcement policies and priorities. During the 100-day pause, the administration has ordered that interior immigration enforcement shall be guided by three priorities: national security, border security, and public safety.
BIDEN ADMINISTRATION IMMIGRATION PROPOSAL
The Biden administration’s immigration proposal sent to Congress, currently titled the US Citizenship Act of 2021, contains the following key elements:
- Legalization and a pathway to citizenship for the undocumented, DACA recipients, and holders of Temporary Protected Status, provided the applicants meet certain preconditions for eligibility.
- Reform of the family-based immigration system, including the clearing of family-based visa backlogs, reduction of wait times, and establishment of a way for sponsored foreign nationals to join their family members in the United States on a temporary basis as they await green cards. The bill also includes provisions to ensure fairness to LGBTQ families in the immigration process, and the end of the “3- and 10-year bars” imposed on certain foreign nationals who have accumulated periods of unlawful presence in the United States.
- No Ban Act: The bill includes provisions that prohibit religious discrimination and limit presidential authority to issue certain entry bans.
- Increase in diversity visas (“green card lottery”) from 55,000 to 80,000 per year.
- Provision of funding to state and local governments to support refugee integration and citizenship.
- Improvements to employment-based immigration. The proposal would reduce employment-based green card backlogs by recapturing unused visas, carving spouses and children out of the employment-based green card quotas, and eliminating per-country green card caps. The bill also makes it easier for graduates of US universities with advanced degrees in STEM fields to obtain green cards. Among other improvements, the proposal would establish employment authorization for dependents of H-1B workers.
- Improvements to the employment verification process, and greater labor protections and protections from deportation for certain foreign workers, including seasonal workers.
- Improvements and modernization of enforcement technology. In addition, the proposal would provide funding for border communities to train and promote immigration officer safety and professionalism.
- Improvements in the immigration courts and reduction of immigration court backlogs.
- Elimination of the one-year deadline for filing asylum claims.
DELAY IN IMPLEMENTATION OF CERTAIN IMMIGRATION-RELATED REGULATIONS PROMULGATED UNDER TRUMP ADMINISTRATION
On January 20, White House Chief of Staff Ron Klain issued a memorandum regarding review of pending regulatory actions that 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, a draft US Citizenship and Immigration Services (USCIS) regulation that would have redefined the definition of an employer/employee in the H-1B Specialty Occupation category and created new obligations for H-1B petitioners and organizations at which H-1B beneficiaries are working, which was not published in the Federal Register by midday yesterday, is withdrawn. On January 21, the US Department of Labor (DOL) withdrew a companion guidance memorandum regarding a new Labor Condition Application requirement for such H-1B petitioners.
In addition, any final rule that has already been published but not yet taken effect may upon further agency action be postponed until March 21, 2021. This may impact the H-1B Wage Selection Final Rule, a USCIS regulation that seeks to overhaul the registration system for cap-subject H-1B petitions in order to prioritize petitions that offer the highest OES level wage. That regulation was scheduled to take effect on March 14, 2021, but will likely be paused. It is doubtful that, even if the Biden administration chooses to move forward with this rule, the rule can go into effect in time to change the upcoming fiscal year 2022 H-1B lottery process.
We are closely following all developments related to immigration and will provide updates and information on a regular basis.