One day is all it took for the Biden-Harris administration to repudiate the Trump-era crackdown on immigration. By issuing a series of Executive Actions, Presidential Memoranda, and Proclamations on January 20 and the days thereafter, President Biden demonstrated his administration’s commitment to undoing much of what his predecessor did over the past four years while also modernizing our country’s immigration system. He also unveiled his administration’s attempt to address the long-standing goal of comprehensive immigration reform through a detailed legislative proposal that will soon be taken up in Congress. What do employers need to know about these actions and what steps should employers take now as a result?
Four Significant Immigration Actions Impacting Employers
The first days of the Biden administration saw at least four significant actions impacting immigration and the workplace.
Halt On Trump’s Last-Minute Work Visa Rules
The White House Chief of Staff issued a memorandum withdrawing all rules pending at the Federal Register that have not been published and advising agencies to consider postponing the effective dates for regulations that have been published, but not yet taken effect, for 60 days. As a result, the USCIS Final Rule that had created a wage-based selection process for H-1B visas may be postponed until March 21, 2021. In addition, the DHS Final Rule clarifying how USCIS will determine whether there is an “employer-employee relationship” will be withdrawn.
Protections for Dreamers
President Biden signed a Presidential Memorandum directing the Secretary of Homeland Security, in consultation with the Attorney General, to preserve and fortify Deferred Action for Childhood Arrivals (DACA). This program provides temporary relief from deportation on a case-by-case basis to more than 700,000 young people who were brought to this country as children, and who met rigorous requirements and background checks. Many are serving our country in the armed services or as essential workers on the front lines of the pandemic. The Trump administration tried to terminate DACA beginning in 2017, but the U.S. Supreme Court rejected that effort and required reconsideration of that decision. After Biden’s action, the program will continue for the foreseeable future, accepting new applications and renewing DACA for those who qualify under the 2012 requirements.
Ending Discriminatory Bans On Entry
President Biden also issued a Proclamation putting an end to the Muslim and Africa Travel Bans. It instructs the State Department to restart visa processing for affected countries and to swiftly develop a proposal to restore fairness and remedy the harms caused by the bans, especially for individuals stuck in the waiver process and those who had immigrant visas denied. The Proclamation also provides for the strengthening of screening and vetting for travelers by enhancing information sharing with foreign governments and capacity building with our partners, and directs reviews of other Trump administration “extreme vetting” practices.
Suspension Of Entry Of Persons Who Pose A Risk Of Transmitting Coronavirus
On January 25, President Biden issued a Proclamation to maintain travel restrictions on individuals from the Schengen Area, U.K., Ireland, and Brazil, which were scheduled by the Trump Administration to end on January 26, 2021. The Proclamation also adds South Africa to the list of countries with restrictions on entry into the U.S. The effective date of the suspension and limitation on entry from South Africa is 12:01 am (ET), January 30, 2021. The Proclamation will remain in effect until terminated and the Biden administration will reevaluate the restrictions monthly.
The Proclamation does not apply to:
In addition, during her press briefing on January 25, Press Secretary Jen Psaki confirmed that, beginning January 26, all international travelers to the U.S. must provide proof of a negative COVID-19 test to airlines within three days prior to their departure.
Planned Immigration Reform Legislation
Beyond these executive actions taken by the White House in the opening days of the new administration, President Biden wasted no time in unveiling his plan for comprehensive immigration reform that can only be accomplished through legislation. His legislative proposal – the U.S. Citizenship Act of 2021 – would provide pathways to citizenship, strengthen labor protections, prioritize smart border controls, and address the root causes of migration. According to the fact sheet released by the White House, the Act would:
Just as comprehensive immigration reform has proven elusive under previous administrations, the chances of this bill becoming law are uncertain. Congress will be kept busy in the early days of this administration handling the second impeachment trial, the next stimulus package, vaccination efforts, a variety of other COVID-19-related measures, and many other priorities on the long list of initiatives that the new Democratic majority wants to tackle. It is unclear when federal lawmakers might seriously begin to debate this measure, and whether bipartisan support can be achieved.
Steps Employers Should Take Now
Regardless of the fate of the proposed legislation, employers have awoken to a new day when it comes to immigration matters in the workplace. You should consider the following items to address the new state of affairs taking shape across the country.
Additional executive actions on immigration are expected on January 29, 2021.