Immigration Update: Biden Administration Takes Action

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The Biden Administration appears to have addressed some of its promises on U.S. immigration policy by issuing a memorandum entitled “Memorandum and Presidential Proclamations” on January 20, 2021, the first day of his administration. We shared in our recent December 2020 blog post, Immigration 2021: A New Administration, A New Beginning?, an update on what employers and foreign workers can expect under the Biden Administration.

The following outlines Biden’s Memorandum and Presidential Proclamations:

  • Memorandum Preserving and Fortifying Deferred Action for Childhood Arrivals (DACA). President Biden has reinstated the DACA program, which is designed to defer the removal of undocumented immigrants who were brought to the United States as children, have obeyed the law, and stayed in school or enlisted in the military.
  • Presidential Proclamation 10141, Ending Discriminatory Bans on Entry to the United States: President Biden revoked the prior executive orders and presidential proclamations, known around the world as the “Muslim travel ban” which barred entry for nationals of Muslim-majority countries. The travel ban originally focused on Muslim-majority countries, but that list was expanded to include a few more countries, with the final list including Burma, Eritrea, Iran, Kyrgyzstan, Libya, Nigeria, North Korea, Somalia, Sudan, Syria, Tanzania, Venezuela, and Yemen. The presidential proclamation orders the U.S. Embassies and Consulates abroad to resume visa processing consistent with the U.S. immigration laws.
  • Presidential Proclamation 10142, Termination of Emergency With Respect to the Southern Border of the United States and Redirection of Funds Diverted to Border Wall Construction. President Biden declared that the national emergency declared by PP 9844 is terminated and that funds will no longer be used to construct a wall at the southern border.

In addition, President Biden has issued the following Executive Order and Presidential Proclamation consistent with his stated goals of promoting health and safety related to international travel:

  • Executive Order 13998, Promoting COVID-19 Safety in Domestic and International Travel. On January 21, 2021, President Biden signed an EO requiring all airline passengers traveling to the U.S. to present a negative COVID-19 test result before boarding an international flight. In addition, the EO requires masks to be worn in compliance with the CDC guidelines in or on: airports; commercial aircraft; trains; public maritime vessels including ferries; intercity bus services; and all forms of public transportation.
  • Presidential Proclamation 10143, Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting Coronavirus Disease 2019. On January 25, 2021, President Biden extended the health-related travel restrictions covering the countries noted in the chart below and expanded the list to include South Africa. Travel has been suspended for foreign nationals physically present in any of the countries listed in the chart below and South Africa for 14 days preceding their attempted entry into the U.S., with some exceptions.

President Biden also signed an Executive Order that more broadly impacts trade and immigration:

  • Executive Order 14005, Ensuring the Future Is Made in All of America by All of America’s Workers. On January 25, 2021, President Biden revoked the Executive Order 13788, Buy American and Hire American (BAHA), which widely affected U.S. immigration generally and more specifically, affected U.S. cross-border immigration, border and immigration official adjudications, trade and procurement. See our blog post, USMCA: Immigration Chapter and TN Visas Unaffected by New Law. Biden’s stated goal behind EO 14005 is to encourage the U.S. government to whenever possible, “procure goods, products, materials, and services from sources that will help American businesses compete in strategic industries and help America’s workers thrive.”

President Biden signed three executive orders on February 2, 2021:

  • Executive Order on Establishment of Interagency Task Force on the Reunification of Families. In this Executive Order, the Biden Administration condemned the policy of separating children from their parents at the United States – Mexico border using the Zero-Tolerance Policy and revoked Executive Order 13841. The task force must identify all children separated from their families and facilitate the reunification of the children with their families.
  • Executive Order on Restoring Faith in Our Legal Immigration Systems & Strengthening Integration and Inclusion Efforts for New Americans. This EO requires agencies to conduct a full review of changes to U.S. immigration adjudication procedures, standards and policy implemented during the Trump Administration. It also mandates agencies to take action on the public charge rule.
  • Executive Order on Creating a Comprehensive Regional Framework to Address the Causes of Migration. The Biden Administration will implement a three-part plan toward managing migration throughout North and Central America. It includes a review of the Migrant Protection Protocols program and the asylum system.

February 4, 2021 H-1B Developments – New Lottery Selection Proposal Delayed

On February 4, 2021, U.S. Citizenship and Immigration Services (USCIS) announced the effective date for the new H-1B Wage Selection Rule will be delayed until December 31, 2021.  Thus, USCIS will use the random lottery selection process applied last year for the fiscal year 2022 H-1B cap season commencing this year.

Immigration Reform Bill

On January 20, 2021, President Biden issued a Fact Sheet outlining the key components of his immigration bill to be sent to Congress. One of its key components is the creation of a legal path to earned citizenship for qualifying undocumented individuals. Applicants must be physically present in the U.S. on or before January 1, 2021. The Secretary of the Department of Homeland Security (DHS) may waive the presence requirement for those deported on or after January 20, 2017, who were physically present for at least three years prior to removal for family unity and other humanitarian purposes.

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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