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April 13, 2021

Update on President Biden’s Immigration-Related Executive Actions and Legislative Initiatives

Many Americans, who value our democratic institutions and traditions, who value the rule of law, equality, and tolerance, were outraged at Trump’s and his supporters’ corrupt and violent attempts to cast aside valid election results that clearly elected Biden, breathed a sigh of relief, on January 20, 2021, as Donald Trump became a private citizen once again, while Joe Biden was sworn in as the 46th president of the United States of America.

President Biden got right down to business rescinding some of Trump’s most discriminatory and anti-immigrant executive actions. These include rescinding the following executive orders that banned immigration from the impacted countries:

  • Proclamation 9645: Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats
    • Countries impacted: Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen
  • Proclamation 9723: Maintaining Enhanced Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats
    • Countries impacted: Chad, Eritrea, Iran, Kyrgyzstan, Libya, Myanmar, Nigeria, North Korea, Somalia, Sudan, Syria, Tanzania, Venezuela, Yemen.
    • Countries that subsequently qualified to be removed from the list: Chad
  • Proclamation 9983: Improving Enhanced Vetting Capabilities and Processes for Detecting Attempted Entry
    • Countries impacted: Myanmar, Eritrea, Kyrgyzstan, Nigeria, Sudan, and Tanzania

Unfortunately, President Biden did not rescind the COVID-based travel bans against Europe-Schengen Area, United Kingdom, Ireland, Brazil, China, and Iran, since those bans are in place on public health grounds rather than discrimination disguised as security concerns.

Also, unfortunately, Trump extended both his immigrant ban (click here to see my article on the details of this ban) and his non-immigrant visa ban (click here to see my article on the details of this ban) to March 31, 2021. Unfortunately, President Biden has not yet rescinded those bans, and so they remain in effect.

I am speculating that there is some political calculation in President Biden’s decision not to rescind the bans, namely that he does not want to antagonize those Americans, who believe that these measures are protecting them from competition for jobs, just as the COVID travel bans are designed to protect their health. There are probably also the political calculations behind this decision that most consulates will be closed for most of the time between now and then, and so those visas would not have been issued in the meantime, anyway. As a result, the negative impact is not so great, and then President Biden can just let the bans expire quietly without renewing them. This appears to be an indication that President Biden is trying to fulfill his promise to govern for the benefit of the American public at large, not just for the benefit of his core base of supporters. He has taken major steps to benefit immigrants, but now he is stepping back to address quietly the concerns of Americans who are concerned about the impact of immigration.

President Biden issued a memorandum instructing the Department of Homeland Security to reinstate the Deferred Action for Childhood Arrival program for young people who were brought to the U.S. as minors and have lived here without valid immigration status. (To view the original text, please click here.)

President Biden stopped funding on the border wall with Mexico based on Trump’s legally questionable reallocation of funding from the Department of Defense’s budget for the construction of the border wall with Mexico under an emergency declaration, in spite of Congress’ rejection of funding for the border wall. (To view the original text, please click here.)

At the same time that President Biden acted to undo Trump’s anti-immigrant immigration legacy, he submitted to Congress his proposal for how to reform the U.S. immigration system. The following is a summary of what was included in that proposal.

Biden’s immigration reform legislation

  • Would increase the availability of employment- and family-based immigrant visas through recapture of unused immigrant visas from past years, increasing the base-line quota number, and establishing a system for increasing the overall quota during times of economic growth, and reduce it during times of economic downturn.
  • Would eliminate the per-country immigrant visa quota limit.
  • Would create a 5-year path to permanent residence and a 3-year path to citizenship for illegal immigrants who pay taxes, pass certain background checks, and meet other requirements.
  • Would create a fast-track path to permanent residence and citizenship for those with DACA, TPS holders, and agricultural workers, as long as they work and/or attend school, pass a background check, and meet certain other requirements.
  • Would abolish the 3- and 10-year bars that disqualify many immigrants who were caught and sent back before successfully entering the U.S., or who were present in the U.S. without legal status and departed from the U.S.
  • Would work to clear the backlog of family-based immigration cases by recapturing unused immigrant visas from past years.
  • Would increase the number of immigrant visa available under the Diversity Visa Lottery from 55,000 to 80,000.
  • Would provide the spouses and children of H-1B visa holders with permission to work.
  • Would restrict the ability of future presidents to enact large-scale travel bans like Trump enacted.
  • Would increase funding for technology to detect illegal border crossers, improving roads along the border to improve CBP’s access to remote areas of the border, improving technology for scanning for illegal drugs and contraband, improving the infrastructure at the points of entry, increasing investigations of human and drug smuggling gangs, increasing investigation of and criminal penalties for human and drug smuggling gangs.

President Biden and the Democrats in Congress will probably find it challenging to pass the legislation, given the strong opposition to previous legislation offering illegal immigrants a path to legal immigration status. With a 50-50 split in the Senate, and even with Vice-President Harris being able to cast a tie-breaking vote, in the Senate, the rule that 60 senators must vote in favor of closing debate (the so-called “cloture rule”), leaves Republicans the possibility to block the legislation by filibuster. Undoubtedly, concessions and amendments will have to be made in order to pick up at least 10 Republican votes for the legislation. There might also be some parliamentarian tactics that can be employed to get around the cloture rule. Time will tell. However, the prospects for an immigrant-friendly reform of immigration look better than they have in years. We will update you as this legislation progresses through Congress.

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