Immigration Horizon Under The New Biden-Harris Administration

“Leadership, at its core, in my view, is about being personal.” President Joe Biden

It is this very quality that President Biden possesses that gives millions of immigrants across the country hope and faith that better days might just be ahead of them. Immigration was a core topic during Biden’s election campaign, and he has indicated that he intends to make immigration one of his top priorities during his term as President. The question remains: what will that look like for the millions of immigrants who are waiting with bated breath and for the business community, who rely on immigrant workers for their high skills and specialized knowledge?

Biden has announced that he would nominate Alejandro Mayorkas for the position of Director of the Department of Homeland Security (DHS). Mayorkas, a Cuban-born lawyer and one of the architects of the Deferred Action for Childhood Arrivals [DACA] program, was previously the head of U.S. Citizenship and Immigration Services, during the Obama administration. He would be the first Latino and first immigrant to hold this position – something that is being hailed as a historic moment. As Biden has noted – he is looking to Mayorkas as someone who “….. will play a critical role in fixing our broken immigration system and understands that living up to our values and protecting our nation’s security aren’t mutually exclusive — and under his leadership, they’ll go hand-in-hand.”

Biden’s nominations for key Immigration Agency positions and White House Staff appear to be intentional and almost always ties into his narrative of securing America’s values as a Nation of Immigrants. This is further reflected in his pick of Tyler Moran as Special Assistant to the President for Immigration for the Domestic Policy Council and of Esther Olavarria as the Deputy Director of the Domestic Policy Council for Immigration. Tyler Moran previously served in the Domestic Policy Council [DPC] in the Obama-Biden White House and had worked on the DACA program while Esther Olavarria, born in Cuba and emigrated to the United States in 1962 with her family, has also worked at the Immigration Hub, the Center for American Progress and the United Nations High Commissioner for Refugees.

Biden’s first 100 days:

Biden’s vision for immigration reform under his administration has been led by a desire to “safeguard our security, provide a fair and just system that helps to grow and enhance our economy, and secure our cherished values.’” As per Biden’s campaign, he has indicated that his priorities within the first 100 days of his administration would include:

• Reversal of the Public Charge regulation: This regulation requires foreign nationals to disclose their financial history, including whether they have used public benefits in the past. This new regulation allows USCIS officers to take such factors into account in a “totality of circumstances” test in determining the granting of certain immigration benefits. Biden has expressed that this policy “undermines America’s character as land of opportunity that is open and welcoming to all, not just the wealthy.”
• Protection of Dreamers: The Obama-Biden administration created the Deferred Action for Childhood Arrivals (DACA) in 2012 to protect “Dreamers,” undocumented immigrants who were brought to the U.S. as children, obeyed the law once here, and stayed in school or enlisted in the military. Under the Trump administration, DACA had been terminated and there continues to be legal action in the courts against this ruling. Biden has mentioned that he intends to reinstate DACA and explore options to provide the Dreamers and their parents a roadmap to citizenship through legislative immigration reform.
• Review of Temporary Protected Status [TPS] rescissions, explore path to citizenship through legislation: Biden has indicated that he intends to order an immediate review of the Trump administration’s rescission of TPS and Deferred Enforced Departure (DED) holders.
• Rescission of Executive Order 13769, Protecting the Nation from Foreign Terrorist Entry into the United States.
• Streamline naturalization process: The Biden campaign has indicated it intends to improve the current naturalization process by “addressing the application backlog by prioritizing the adjudication workstream and ensuring applications are processed quickly and rejecting the imposition of unreasonable fees.” 

Long-term employment-based priorities:

The President had maintained throughout his campaign – and in more recent times – that he envisions a modern immigration system – one that  attracts the “best and the brightest” talents to the U.S. and in turn incentivizes foreign talent to seek out employment in the U.S. President Biden has also indicated he would like to bring about changes and reverse some of the Trump administration’s executive orders to bring about an ease for employers to employ foreign talent and continue to leverage the “best and the brightest” applicants that come to the U.S. Some of the changes that the Biden administration has indicated that they will focus on are:

• High-skill nonimmigrant reforms
• Wage-based allocation process for H-1B
• Prevent “crowding out” of high-skilled workers by entry-level workers
• Support legislation to eliminate per-country Employment based Green Card quotas
• Support legislation to increase EB IV quota
• Temporary quota reductions during periods of high U.S. unemployment
• Quota exemption for recent U.S. STEM Ph.D. graduates
• Support new visa category to allow cities and countries to petition for higher levels of immigrants to increase economic growth

•  H-2B reforms and streamlining
• Strengthening employer compliance and enforcement

There are many open questions that remain; specifically, the Biden administration has not explicitly provided any indication of its plans for such immigration issues as:

• Presidential proclamations on H/L/J [non immigration visa categories] visa issuance, immigrant visa applicant health insurance, and COVID-19 travel restrictions
• H-1B cap number allocation
• H-1B eligibility criteria
• L-1 visa policy
• F-1 admission periods, practical training
• B-1 business visitor policy
• EB-5 investor visa policy

The reality is that as President Biden assumes the office of the President of the United States of America, he will be faced with several challenges – all of them competing for his attention and immediate action. It is expected that Biden’s first priority will be COVID-19 and stabilizing the economy. Amid all of this, from an immigration perspective, it is important to temper our expectations from the incoming administration as to what it will be able to achieve in its first 100 days. Since his election, Biden has urged a sense of patience while his administration begins the long process of undoing some of the current administration’s policies. He has indicated that this will take time and he would like his administration to “get it right,” instead of causing more chaos.

As Bruna Bouhid, communications director of United We Dream, the first and largest immigrant youth-led organization stated – “There’s so much energy on what we can do in a Biden-Harris administration.” This was further echoed by the American Immigration Lawyers Association [AILA] President Jennifer Minear in her statements post-election – “AILA stands ready to offer solutions that will help undo the previous administration’s harmful immigration policies and to work toward a better future for all of us.”  It appears that with the incoming Biden-Harris administration, there has been a renewed vigor and faith within the immigration and business community. The expectation appears to be one of stability, predictability and accountability, together with reinstating a sense of respect for immigrants throughout the country.

Originally posted on https://www.fragomen.com/.