On February 2, 2021, the U.S. Senate confirmed Alejandro Mayorkas as Department of Homeland Security (DHS) Secretary and President Biden signed three immigration orders aimed at reunifying children separated from their parents at the U.S.-Mexico border, addressing the U.S. southern border and asylum system, and improving the U.S. legal immigration system.

The latter, the Executive Order on Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans , stands to have the most direct impact on businesses hiring foreign workers. The order:

• Directs the White House Domestic Policy Council to create a task force to coordinate the federal government’s efforts to welcome immigrants, and improve and support immigration processes.
• Charges the Attorney General, the Secretary of State and the Secretary of DHS with
• reviewing existing regulations, orders, guidance and policies (collectively “agency action”) with a view to identifying barriers that impede access to immigration benefits and the fair and efficient adjudication of benefit applications.
• identifying agency actions that fail to promote access to the legal immigration system and rescinding or revising the policies and practices as appropriate.
• Submitting a plan within 90 days to advance policies consistent with improving and supporting immigration processes to welcome immigrants.
• Mandates immediate agency review of the public charge rule,  and requires agencies to address concerns with the policy and its impact on immigration processes and public health.
• Directs the Attorney General, the Secretary of State and the  Secretary of DHS to promote the naturalization process by eliminating barriers to naturalization, substantially reducing backlogs, improving the process, and promoting naturalization generally.

Impact Assessment

While the order does not advance a specific policy, its impact may be far reaching in the months ahead.  Numerous Trump Administration actions were implemented to create barriers to legal immigration, including agency action stemming from the Buy American, Hire American Executive Order . This included rescission of agency policies that gave deference to prior agency approval of benefits applications, and imposed a level of application scrutiny that exceeded statutory and regulatory authority. The result was a significant increase in requests for evidence, application backlogs, unconscionable adjudication delays, and denial of benefit applications.  U.S. businesses employing foreign nationals experienced a lack of predictability in adjudications, increased costs associated with sponsorship, interrupted  business continuity, and a loss of access to foreign talent generally.

Yesterday’s  order, together with last week’s order revoking the Buy American, Hire American order, signals that the Biden Administration  is set on reversing restrictionist Trump-era immigration policies with a view to restoring integrity and enhancing efficiency in the legal immigration system.   Additionally, and notably, DHS Secretary Mayorkas previously served as the director of U.S. Citizenship and Immigration Services (USCIS) under the Obama Administration. His experience leading USCIS – the benefits agency within the Department of Homeland Security – is another signal that the Biden Administration will prioritize and emphasize improving access to legal immigration benefits.

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