Written by Meredith W. Barnette, Esq., Partner.
The results of the 2020 election could have lasting consequences on the United States immigration system.
The race will pit incumbent Republican President Donald Trump against former Democratic Vice President Joe Biden.
Since taking office, Trump has altered U.S. immigration in broad and pronounced ways. Meanwhile, Biden is calling for “urgent action to undo Trump’s damage” and a modernization of the immigration system as a whole.
Below is an in-depth look at both candidates positions on immigration issues:
Incumbent Republican President Donald Trump
Some of Trump’s actions related to immigration during his almost four years in the White House include:
Executive orders suspending entry during COVID-19 pandemic
Trump put in place two restrictive executive orders in 2020, both of which he claimed were necessary because of the economic impacts of the coronavirus (COVID-19) pandemic.
First, in April, Trump signed an order barring foreign nationals from entering the country for the first time as U.S. permanent residents.
He followed with another proclamation about three months later suspending entry of certain individuals using H-1B (specialty occupation), L (intracompany transfer), H-2B (temporary worker) and most J (exchange visitor) visas.
Specifically, that order applies to foreign nationals who:
- Were outside of the U.S. the day the proclamation took effect (June 24);
- Do not already have a valid H-1B, L-1, H-2B or J visa stamp in their passport (if seeking entry in one of those categories); and
- Do not have an official travel document other than a visa (such as a transportation letter, an appropriate boarding foil or an advance parole document) that is valid on the effective date of the proclamation or issued on any date thereafter that permits them to travel to the United States and seek entry or admission.
Both measures, which are facing legal challenges, are in place until at least the end of the year and could be extended if Trump defeats Biden and wins re-election in November.
Additionally, Trump barred foreign nationals who had traveled to China during the previous 14 days from entering the U.S. because of the COVID-19 pandemic in early 2020 and enacted a similar ban for those who had been in Brazil, Iran, the 26 nations located in Europe’s “Schengen Area,” the United Kingdom and Ireland.
The U.S. borders with both Canada and Mexico have been closed for “non-essential traffic” since mid-March, as well.
Buy American Hire American executive order
The Buy American Hire American Executive Order (BAHA), signed by Trump in April 2017, aimed to create higher wages and employment rates for U.S. workers and protect their economic interests by rigorously enforcing and administering immigration laws.
BAHA also directed the Department of Homeland Security, in coordination with other agencies, to advance policies to help ensure H-1B visas are awarded to the most-skilled or highest-paid beneficiaries.
Many analysts believe BAHA has stifled global mobility and valuable talent in a tight labor market. Employers have certainly felt the effects of the overarching executive order over the last three-plus years.
BAHA has resulted in an increase in Requests for Evidence (RFE) issued after filing a petition with USCIS; an increase in petition denials, especially for H-1B and L-1 visa petitions; and excessive delays in case adjudications.
Furthermore, BAHA led to a significant change in the H-1B cap system: an online electronic registration process before the computer-generated lottery.
Under the new system — which was first used during the FY2021 cap season — employers only file complete petitions for those registered applicants already selected in the lottery. Previously, employers submitted an entire petition in order for each applicant to be eligible to enter the lottery.
The U.S. government caps the number of H-1B visas granted each year at 85,000 — 20,000 of which are allocated for foreign nationals who hold a U.S. master’s or doctorate degree.
Public charge rule
Under the Trump administration, the Department of Homeland Security has put into place a much more extensive and detrimental interpretation of the “public charge” rule, which took effect in late February in all 50 states.
Multiple federal judges originally blocked the new rule in late 2019, but the Supreme Court lifted those temporary injunctions while those legal challenges continued.
USCIS then implemented extensive regulations for determining whether a foreign national would be deemed inadmissible to the U.S. based upon the likelihood of becoming a public charge at any time in the future.
The mere receipt of certain benefits does not automatically make an individual inadmissible, ineligible to adjust status to lawful permanent residency or deportable on public charge grounds, as each determination is made on a case-by-case basis in the context of the totality of the circumstances.
However, a federal judge in New York again temporarily blocked in late July the “public charge” rule during the coronavirus (COVID-19) pandemic, finding there was “ample evidence” that the policy deters foreign nationals from seeking medical treatment during the outbreak. This injunction is limited to foreign nationals who live in New York, Connecticut or Vermont.
Attempt to rescind Deferred Action for Childhood Arrivals (DACA) program
Trump attempted to end the Deferred Action for Childhood Arrivals (DACA) program during the first year he was in office. But the Supreme Court ruled in a 5-4 decision in late June that the government did not provide sufficient justification for shuttering the program.
The White House then announced it was conducting a “comprehensive review” of the program. During that period, the administration will not accept initial requests for DACA, limit renewals to one year rather than two and grant applications for advance parole only to those with “extraordinary circumstances.”
DACA was first introduced in 2012 by President Barack Obama and offers temporary protection to almost 700,000 people. DACA recipients can receive work authorization in the United States; enroll at colleges and universities; and have the ability to obtain a driver’s license.
Trump will likely seek to end the DACA program again if he wins re-election.
Asylum seekers, refugees and family separation
Trump has cut refugee admissions to the United States significantly during his tenure in the White House.
The cap for the number of refugees that could resettle in the U.S. was 110,000 when Obama, Trump’s predecessor, left office in 2012.
Trump reduced that number to 18,000, an all-time low, by FY2020.
Trump has made it much more difficult for individuals to seek asylum in the U.S., implementing policies such as Migrant Protection Protocols (Remain in Mexico) and metering, amongst others. The administration has also proposed a rule to charge a $50 fee for asylum applications – which would make the United States just the fourth country to charge asylum seekers a fee, joining Australia, Fiji and Iran.
The White House also implemented a strategy in late 2017 of separating children and their parents at the border, leading to a humanitarian crisis. The cruel “Zero Tolerance” policy was blocked by a federal judge in June 2018.
Trump added six new countries to his travel ban, one of the signature policies of his administration, in early 2020.
There are now 13 nations affected by the measure, which was originally issued in 2017.
The specific restrictions placed on foreign nationals from each individual country follows below (via the American Immigration Lawyers Association):
- Eritrea: Suspends the entry of immigrants, except as Special Immigrants who have provided assistance to the U.S. government.
- Kyrgyzstan: Suspends the entry of immigrants, except Special Immigrants who have provided assistance to the U.S. government.
- Iran: Suspends the entry of immigrants and all nonimmigrants, except F (student), M (vocational student) and J (exchange visitor) visas, though they are subject to enhanced screening.
- Libya: Suspends the entry of immigrants and temporary visitors on business or tourist visas (B-1/B-2).
- Burma (Myanmar): Suspends the entry of immigrants, except Special Immigrants who have provided assistance to the U.S. government.
- Nigeria: Suspends the entry of immigrants, except Special Immigrants who have provided assistance to the U.S. government.
- North Korea: Suspends the entry of all immigrants and nonimmigrants.
- Somalia: Suspends the entry of immigrants and requires enhanced screening of all nonimmigrants.
- Sudan: Suspends the entry of Diversity Visa immigrants.
- Syria: Suspends the entry of all immigrants and nonimmigrants.
- Tanzania: Suspends the entry of Diversity Visa immigrants.
- Venezuela: Suspends the entry of certain government officials and their family members on business or tourist visas (B-1/B-2).
- Yemen: Suspends the entry of immigrants and temporary visitors on business or tourist visas (B-1/B-2).
Democratic nominee Joe Biden
Joe Biden served as a United States senator from 1973-09 and as Obama’s Vice President from 2009-17. He defeated more than 25 primary candidates to become the Democratic nominee for president in the 2020 election.
Biden’s immigration platform includes:
Repeal of multiple Trump policies
Biden has vowed to repeal and/or overturn numerous actions taken by Trump if voters choose to put him in the White House.
Those measures include reversing Trump’s policy of separating families at the border; restoring asylum laws to “protect people fleeing persecution and who cannot return home safely;” rescinding the travel and refugee bans; and revoking the new “public charge” rule.
“Trump’s policies are also bad for our economy,” Biden writes in his platform. “For generations, immigrants have fortified our most valuable competitive advantage – our spirit of innovation and entrepreneurship.
“Research suggests that ‘the total annual contribution of foreign-born workers is roughly $2 trillion.’ Key sectors of the U.S. economy, from agriculture to technology, rely on immigration. Working-age immigrants keep our economy growing, our communities thriving and country moving forward.”
Employment-based immigration changes
Biden lists multiple policies in his platform that would impact work visas if enacted.
The number of permanent, employment-based visas is currently capped at 140,000 per year. However, Biden writes he will advocate for eliminating the cap and replacing it with a scale that would increase or decrease the number of visas awarded depending on the current U.S. unemployment rate.
Biden also advocates for exempting students who complete PhD programs in STEM fields from the cap and providing graduates with U.S. doctoral degrees with green cards upon completion of their programs.
Moreover, Biden has vowed to reform the temporary visa system.
“Biden will work with Congress to first reform temporary visas to establish a wage-based allocation process and establish enforcement mechanisms to ensure they are aligned with the labor market and not used to undermine wages,” Biden’s campaign platform reads.
It continues: “Then, Biden will support expanding the number of high-skilled visas and eliminating the limits on employment-based visas by country, which create unacceptably long backlogs.”
Biden was a part of the Obama administration that first introduced the Deferred Action for Childhood Arrivals (DACA) program via executive order in 2012.
Biden has vowed to protect DACA recipients, known as “Dreamers,” and their families if he is elected president.
“Dreamers and their parents should have a roadmap to citizenship through legislative immigration reform,” Biden’s official campaign platform reads. “But in the meantime, Biden will remove the uncertainty for Dreamers by reinstating the DACA program, and he will explore all legal options to protect their families from inhumane separation.”
Pathways to citizenship and increased naturalizations
A Biden administration will aim to “streamline and improve the naturalization process” making it easier for green-card holders to become citizens of the United States, according to the campaign’s website.
“Biden will restore faith in the citizenship process by removing roadblocks to naturalization and obtaining the right to vote, addressing the application backlog by prioritizing the adjudication workstream and ensuring applications are processed quickly, and rejecting the imposition of unreasonable fees,” the website reads, in part.
In addition, Biden supports creating a “roadmap” to legal status and citizenship for almost 11 million unauthorized immigrants “who register, are up-to-date on their taxes and have passed a background check.”
Additional oversight of immigration agencies
Biden and other Democrats will push for the implementation of robust mechanisms for oversight of immigration agencies, including Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP).
“(A Biden administration will) ensure that Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) personnel abide by professional standards and are held accountable for inhumane treatment,” the Democratic nominee’s platform reads. “Biden will increase resources for training and demand transparency in and independent oversight over ICE and CBP’s activities.
“Under a Biden Administration, there will be responsible, Senate-confirmed professionals leading these agencies, and they will answer directly to the president.”
Oversight and senate confirmation of top officials at immigration agencies has become a source of controversy during the Trump administration.
The 2020 presidential election will be held Tuesday, Nov. 3. Voter registration deadlines vary on a state-by-state basis, with most coming by mid-October.