Insight into the Biden Administration’s Immigration Plan

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President-Elect Joe Biden’s January inauguration is fast approaching, and he has proposed one of the most robust and ambitious immigration plans in recent history. The plan highlights the significant history of immigration in the United States, the rich cultural and social contributions made by immigrants, and the economic benefit of attracting the world’s best and brightest individuals to America. While it is clear we can expect more welcoming language than that of the prior administration, the amount of actual change he will be able to implement remains unclear. With President-elect Biden likely focused on the pandemic and recession, it may be difficult for him to devote significant political capital to his immigration agenda. Additionally, the outcome of two runoff elections in Georgia will determine which party controls the Senate and how cooperative the Senate will be with implementing President-Elect Biden’s pro-immigration proposals. Nevertheless, the Biden Administration will still be able to accomplish certain policy goals through executive orders and existing law under the Departments of State and Homeland Security.

As President Barack Obama’s Vice President, President-Elect Biden is a staunch proponent of the Deferred Action for Childhood Arrivals (“DACA”) program, which President Obama implemented in 2012. The current administration has made several attempts to limit the program, including a denial of new applicants, and the Biden Administration will undoubtedly work to restore the program to its full functionality. However, the Obama Administration’s long-term goal of creating a pathway to citizenship for DACA recipients will still require congressional approval—a much more difficult objective.

President-Elect Biden’s plan also includes a return to other immigration policies of President Obama’s administration, such as an expansion of Temporary Protected Status (“TPS”) designation to countries impacted by conflict and natural disaster, and returning to an enforcement policy that targets “threats to public safety and national security,” signaling an end to workplace raids. The plan includes an end to several Trump-era policies, including the “travel and refugee” ban targeting Muslim countries, a reduction in prolonged detention of children, and a reversal of the current administration’s public charge rule. Further, President-Elect Biden intends on reinstating asylum protection to victims of gang and domestic violence, which was standard policy until 2018.

President-Elect Biden also proposes several plans aimed at expediting the adjudication of green card applications and immigration court cases, including doubling the number of immigration judges, staff, and interpreters. The plan also focuses on uniting families, including the issuance of temporary non-immigrant visas to family members awaiting visa processing, and treating the children and spouses of lawful permanent residents (“LPRs”) as immediate family members, thereby allowing family members of LPRs to reunite with their loved ones and immigrate to the United States more quickly.

Many of President-Elect Biden’s progressive and more ambitious proposals will require congressional approval, making implementation of those goals less certain. Much of his immigration policy concentrates on making America more welcoming to skilled laborers, such as a fast-track green card process for graduates of U.S. PhD programs in STEM fields, and eliminating limits on employment-based visas by country—a source of a decades-long backlog in green card availability for those born in countries such as India and China. President-elect Biden also proposes improvements for temporary workers, including greater flexibility in switching jobs and a certification process for employers to show the labor market’s need for foreign workers. To supplement this, he proposes a regional-based immigration system, allowing counties and municipalities to petition for additional immigrant visas that could address a shortage of laborers in their local industries. Whether President-elect Biden will be successful with implementing these changes or not will likely depend on who wins the senatorial runoff elections in Georgia in January 2021.

President-Elect Biden’s proposals also include a goal of working with Congress to expand the number of high-skilled temporary visas, but it remains to be seen whether his administration will reverse the current administration’s regulations that have dramatically increased prevailing wage requirements for employment-based green card petitioners and H-1B nonimmigrant visa petitions.

Lastly, President-Elect Biden’s plan includes several proposals aimed at giving immigrants more involvement and representation in their local communities, which will require the cooperation of state and local governments for optimal implementation. His proposals include creating “Offices of Immigrant Affairs,” which would be located in city halls and state offices to encourage inclusive policy, as well as a plan to promote cultural events, biliteracy (to recognize people who graduate from high school speaking multiple languages), and immigrant representation in schools. His plan also includes an effort to reduce state-level barriers on relicensing professional degrees and certifications from other countries, which would enable foreign-trained professionals to utilize their skills in the United States more readily.

The immigration attorneys at Harris Beach will be closely monitoring policy implemented by President Biden’s administration and how it might apply to pending or future applications.

Harris Beach Law Clerk Joshua Hofstetter contributed to this blog post.

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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