In part 1 in our series discussing immigration changes, we discussed legacy immigration policies of the Trump administration. In part 2 of 2, we will explore likely upcoming immigration policy changes from the Biden administration:
The Public Charge Rule expansion: This was a Trump administration regulatory action that greatly complicated the process of obtaining permanent residence for foreign nationals as it requires an excessive amount of evidence to prove that a foreign national will not receive public benefits in the United States. By way of example, very well-compensated professionals are required under this rule to submit a litany of financial documentation (often hundreds of pages worth) to prove they are not likely to receive public benefits in the next 5 years. Otherwise, their permanent residence filling would be denied. The Biden administration has announced they will seek regulatory action within the first 100 days to rescind this rule. It seems like it will meet with court challenges from anti-immigrant groups, so this is likely to result in a prolonged litigation. We predict this litigation will end up in the Supreme Court of the United States.
Deferred Action for Childhood Arrivals (aka the “Dreamers” or “DACA): The Biden administration has already taken action on the first day to strengthen the DACA program so that it can continue indefinitely as a regulatory program. As discussed below, the Biden administration has already introduced draft bills that would codify DACA as a statute rather than just a regulation and offer an immediate pathway to citizenship for DACA recipients.
The H-1B and immigrant visa bans: This is an executive order originally released in April 2020 that prohibited certain intending immigrants from entering the country citing Covid-19 concerns. There was a subsequent order in June 2020 that did the same for certain incoming nonimmigrants such as H-1B holders. On 12/31/2020, president Trump extended these bans until 03/31/2021. The Biden transition team has been somewhat coy as to how they will deal with these. Since these are executive orders, they can be rescinded with merely a subsequent executive order that cites a reasonable basis. There is also advanced litigation on these bans in which an injunction is likely to be enjoined soon. Additionally, there have been media reports that the Biden administration may rescind these bans as early as today. Regardless of whether they are rescinded or enjoined, it is highly unlikely that these bans will be extended past 03/31/2021.
Finally, the Biden administration has announced a comprehensive immigration bill, introduced on their first day. The Biden administration has not released the full text of the plan yet, but has released a summary factsheet. The headline has been a pathway to citizenship for the undocumented, but it largely will not directly impact most employment-based and family-based immigrants. The provisions that will more directly impact employment-based and family-based immigrants include:
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- A clearing of immigration backlogs for employment immigration, which will be of assistance for hundreds of thousands of employment-based immigrants who are stuck in priority date backlogs
- Statutory authority for H-4 EAD work authorization so that future administrations could not end H-4 work authorizations, as well as automatic extension of H-4 EADs with a pending renewal.
- An immediate pathway to citizenship for DACA recipients.
- Cap-exempt H-1Bs for STEM Ph.D. graduates.
- A provision that would not count dependents towards priority date quotas that would ensure backlogs do not grow again.
- A statutory restriction on INA 212(f) that would prohibit a future president from issuing broad Executive Orders such as the “Muslim ban” and April H-1B bans.
- The word “alien” would be removed from the immigration code and replaced with noncitizen.
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As always, immigration professionals at Bunger & Robertson are here to assist you in navigating the ever-changing US immigration system. Do not hesitate to contact us today.