Immigration under Biden: What to Expect

On Behalf of | Jan 12, 2021 | Immigration |

We are almost a week away from Joe Biden and Kamala Harris taking office as President and Vice President of the United States, so we are providing a summary of their proposed immigration plan below.

Much of Biden’s immigration plan includes reversing the many hundreds of inhumane Trump policies that came in as executive orders, federal regulations, and policy memoranda. These items can be reversed by Biden’s administration alone without the help of Congress. Some items, such as executive orders, can swiftly and easily be rescinded, such as the Muslim ban. Others may take longer because they are already codified in the federal regulations. It may take many months to reverse these regulations because the Biden administration would have to go through the requisite administrative protocols.

One exception to that is that because the Democrats will soon have narrow control of the Senate, they will be able to benefit from the Congressional Review Act (“CRA”), which allows for summary reversal of regulations that were finalized within the last 60 legislative days, such as the “death to asylum” regulation enjoined on Friday.

The rest of the items on Biden’s wish list will require Congress to act with him and those will be discussed below.

The following are highlights of what the Biden team has announced it will do in the first 100 days of his presidency (without Congress):

  • Pause deportations for 100 days
  • End the Muslim ban
  • End Trump’s family separation policies and prioritize reunification of families, including no longer prosecuting parents for minor immigration violations
  • End Trump’s anti-asylum policies, such as the Remain in Mexico policy and the policies that make it almost impossible to obtain asylum based on gang-based and domestic violence persecution
  • Send resources to the border to help efficiently process asylum seekers
  • End prolonged immigration detention for those in removal proceedings and provide them with access to critical social services
  • End Trump’s public charge rule which prioritizes wealthier immigrants with higher levels of education for lawful permanent residency
  • Reinstate DACA and “explore all legal options to protect their families from inhumane separation”
  • Reevaluate Temporary Protected Status (“TPS”) and protect TPS holders from being removed
  • Refocus enforcement priorities to only those who are “threats public safety and national security,” end workplace raids, and keep ICE from detaining people in sensitive areas, such as workplaces, schools, hospitals, and places of worship
  • Ensure that ICE and CBP act properly and are held accountable for inhumane treatment
  • Streamline the naturalization process by removing Trump roadblocks and massive fee increases

Biden has also stated that he will do the following for asylum-seekers and refugees:

  • Streamline the credible fear process at the border to ensure those who may qualify for asylum can enter the United States and prepare for their court hearings
  • Restore asylum eligibility for survivors of domestic violence and sexual violence
  • Double the number of immigration judges and court staff
  • End for-profit detention facilities, but continue immigration detention
  • Increase the annual global refugee admissions cap to 125,000 and raise it over time
  • Expand the Central American Minors (“CAM”) program to make it easier for parents to bring their minor children from Central America

Biden has also stated his plan to work with Congress on legislation that would include:

  • Creating a pathway to citizenship for 11 million people “who register, are up-to-date on their taxes, and have passed a background check.”
  • Providing a pathway to “legalization” for agricultural workers who have worked for years on U.S. farms and continue to work in agriculture
  • Providing temporary status to those waiting for their family-based visas to become available and turning spouses and children of permanent residents into immediate relatives
  • Tripling the 10,000 per year cap on U Visas and expanding U Visa protection to victims of any workplace violation

Biden announced that he would introduce an immigration bill immediately after taking office. We assume the bill would include the items listed above, but his team has not yet stated.

When will these changes occur?

Keep in mind that for any of this legislation to come to fruition, it will have to pass the House and Senate. Although the Democrats and Republicans will have 50 seats each in the Senate, and Vice President Harris will be the Democratic tiebreaker, Democrats may not have enough of a majority to easily pass an immigration reform bill, which would require 60 votes. It remains to be seen what will happen on that front.

Additionally, President-Elect Biden has nominated Alejandro Mayorkas as Secretary of the Department of Homeland Security (“DHS”). Mayorkas was head of USCIS and deputy secretary of DHS under former President Obama. Because of this, we expect Biden to return to Obama era priorities, which means it will still be enforcement heavy.

As a firm, we are not overly enthusiastic about the incoming Biden administration’s stances on immigration. It is clear the administration will continue to further the narrative of the “good” versus “bad” immigrant- directing enforcement efforts to threats to public safety and national security and continuing to detain both adults and children- while shifting focus back to humanitarian protection and family unity. Nevertheless, knowing that the Biden administration cares about due process and upholding the Constitution, allows us to breathe a sigh of relief that our clients will be given a fighting chance. Moreover, by simply reversing all of Trump’s 400 plus horrendous immigration policies, Biden will make the immigration landscape infinitely better.

While Biden has set expectations for his term, it is important not to make firm plans until he actually takes office and makes changes. Even then, the details of any new policy will be important to review and will need to be taken into account.  Because of all the impending changes that will take place under the Biden/Harris administration, we highly recommend speaking with an experienced immigration attorney to discuss options as they become available.

It has been a long four years for our clients, their families, and us as advocates, and we are looking forward to an end to the nonstop assault on immigrant rights through Trump’s anti-immigrant, anti-human rights, and anti-American policies. We at Bean, Lloyd, Mukherji, & Taylor are finally feeling hopeful for the future.