Immigration Under Biden Administration: Changes in the First 100 Days

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Highlights

  • The Trump Administration implemented many changes to immigration processes and procedures in the United States that were restrictive and resulted in long delays and suspensions of movement.
  • Holland & Knight's first Biden Administration employer alert focused on immigration details the changes that the new administration has taken since entering office on Jan. 20, 2021, which undo some of the previous administration's restrictive measures.
  • As the Biden Administration makes more changes during its first 100 days in office, Holland & Knight will continue to provide updates as necessary.

There were many changes to immigration processes and procedures in the United States in just the past year, partially as a result of the coronavirus pandemic and partially as a result of the Trump Administration, which was more restrictive and less supportive of immigration matters. Under the new Biden Administration, which took office on Jan. 20, 2021, Holland & Knight has already seen the unraveling of some of the more restrictive measures taken by the previous administration, and more unraveling is expected to come. This Holland & Knight alert details the changes that the new administration has made to immigration procedures and processes that are of particular interest to clients.

President Joe Biden Issued an Executive Order Promoting COVID-19 Safety in Domestic and International Travel

This executive order requires the Secretary of the U.S. Department of Health and Human Services (HHS) and the Secretary of U.S. Department of Homeland Security (DHS) to assess the Center for Disease Control and Prevention's order requiring a negative COVID-19 test from airline passengers traveling to the U.S. and to take "further appropriate regulatory action" to implement public health measures for international travel.

Travel Ban Affecting Iran, Libya, Somalia, Syria, Yemen, Venezuela, North Korea, Belarus, Burma, Eritrea, Kyrgyzstan, Nigeria, Sudan and Tanzania

This has been revoked by President Biden on his first day in office, Jan. 20, 2021, by issuing the Proclamation in Ending Discriminatory Bans on Entry to the United States, which officially revoked Executive Order 13780 and Proclamations 9645, 9723 and 9983.

100-Day Pause on Deportations and Rescission of the February 2017 Trump Order Announcing All-Out Enforcement Without Any Prioritization

The DHS Acting Secretary David Pekoske issued a memorandum directing certain DHS offices, including U.S. Customs and Border Protection (CBP), U.S. Immigration and Customs Enforcement (ICE) and the U.S. Citizenship and Immigration Services (USCIS), to review and reset immigration enforcement policies and set interim policies for civil enforcement during such review. Pursuant to this, DHS will pause the removal of certain noncitizens ordered deported for 100 days.

Declaration of End of "National Emergency" at Southern U.S. Border and Halt Border Wall Construction

President Biden issued a proclamation stating that the national emergency declared by Proclamation 9844, which was continued by former President Donald Trump on Feb. 13, 2020, and Jan. 15, 2021, is terminated and that the authorities invoked in that proclamation will no longer be used to construct a wall at the southern U.S. border. This proclamation also directs the appropriate government officials to pause work on construction on the southern border wall and to develop a plan to redirect funds and repurpose contracts.

Preservation of and Plans to Strengthen the DACA Initiative

This memorandum is titled Preserving and Fortifying Deferred Action for Childhood Arrivals (DACA) and directs the DHS Secretary and the Attorney General to take actions deemed appropriate to preserve and fortify DACA.

Suspensions of New Enrollments in Migrant Protection Protocols Program

DHS announced that it is suspending new enrollments in the Migrant Protection Protocols (MPP) program and will cease adding individuals into the program effective Jan. 21, 2021, and advises that all current MPP participants should remain where they are pending further information from U.S. government officials.

Extension of Deferred Enforcement Departure for Liberians for 18 Months

President Biden issued a memorandum deferring through June 30, 2022, the removal of any Liberian national, or person without nationality who last habitually resided in Liberia, who is present in the United States and who was under a grant of Deferred Enforcement Departure as of Jan. 10, 2021, with some exceptions. The memo also allows for continued employment authorization for such individuals through June 30, 2022.

Halt of President Trump's Plan to Exclude Noncitizens from the U.S. Census and Apportionment of Congressional Representatives

This Executive Order 13986 revokes President Trump's Executive Order 13880 of July 11, 2019 (Collecting Information About Citizenship Status in Connection With the Decennial Census) and the Presidential Memorandum of July 21, 2020 (Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census), and directs the Secretary of the U.S. Department of Commerce to ensure that the apportionment base and state-level tabulations include all inhabitants without regard to immigration status.

Review Any Pending Regulatory Actions for Possible Withdrawal and Delay Effective Dates of Regulations That Were Published But Not Yet in Effect

This Executive Order 13993 revokes Executive Order 13768 of Jan. 25, 2017 (Enhancing Public Safety in the Interior of the United States) and directs the U.S. Department of State's Secretary, Attorney General, DHS and other government officials to review any agency actions developed pursuant to Executive Order 13768 and to take action, including issuing revised guidance, as appropriate and consistent with applicable law.

Immigration Bill to Congress

President Biden also sent an Immigration Bill to Congress that will be sponsored by Sen. Robert Menendez (D-N.J.) and Rep. Linda Sánchez (D-Calif.). Even though bills, once passed, often look very different from their starting point, it is perhaps beneficial to understand what provisions are in the Immigration Bill and, as such, key provisions are listed below:

  • Legalization and Path to Citizenship for Unauthorized Immigrants, which will apply to Dreamers, temporary protected status (TPS) recipients and farmworkers who qualify for U.S. green cards and, subsequently, U.S. citizenship, and permit all other unauthorized immigrants to receive conditional lawful permanent resident status, including employment authorization for five years and enable them to apply for U.S. citizenship if they later qualify
  • Reforms to the family-based immigration system
  • Reforms to the employment-based immigration system
  • Increases U.S. green cards under the Diversity Visa Program from 55,000 to 80,000
  • Makes reforms to immigration courts, primarily to reduce backlogs and restore judicial discretion to grant relief
  • Expands legal orientation and legal representation programs
  • Improves asylum, U visa, T visa and Violence Against Women Act (VAWA) humanitarian programs
  • Prohibits future discriminatory bans, such as the Muslim and African travel bans
  • Reforms to manage U.S. borders and ports of entry, including increased accountability measures and increased resources, technology and infrastructure
  • Programs and funds to address the root causes of migration from central America
  • Protections for workers from exploitation
  • Improvements to the E-Verify employment verification system
  • Funds for immigrant integration initiatives at the state, local and community levels

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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