Written by Holly Hatton Kuzeyman, Esq., Senior Attorney.
Democrat Joe Biden is set to become the next president of the United States.
Biden, who was a United States senator for more than 35 years before serving as vice president to Barack Obama from 2009-17, defeated incumbent Republican Donald Trump in both the popular vote and the electoral college in the 2020 election. A confirmed transition has recently begun, with an official inauguration date of January 20, 2021.
Below is an in-depth analysis of Biden’s anticipated immigration policies as well as some of the potential actions he may take during his term as president.
“Reclaim America’s values”
A major feature of the Biden campaign’s immigration platform was a plan to “take urgent action to undo Trump’s damage and reclaim America’s values.”
“As president, Biden will move immediately to ensure that the U.S. meets its responsibilities as both a nation of laws and a nation of immigrants,” the platform reads.
Yet, overturning some of Trump’s policies may be more difficult than others.
Trump has implemented his immigration platform primarily in two ways: through signing executive orders and issuing new or changing existing regulations.
Trump’s policies issued by executive order should theoretically be easier for Biden to reverse in a short time frame. Those passed by regulations, conversely, could take longer to change as they are typically subjected to an extensive, time-consuming rule-making process.
COVID-19 travel restrictions and executive orders
It remains unclear how the Biden administration will address the multiple travel restrictions and bans put in place because of the COVID-19 pandemic.
Trump barred foreign nationals who were present in 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 were present 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 also been closed for “non-essential traffic” since mid-March. However, in practice, there has been very little pushback with professionals transiting from Canada to the U.S.
Additionally, in April, Trump signed an order banning 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. A recent successful preliminary injunction in NAM vs. DHS cited that the COVID-19 unemployment problems were not focused in employment areas typically filled by these visa categories.
Both measures, which are facing ongoing legal challenges, are in place until at least until the end of 2020.
Biden has yet to provide specific details about his plans for these proclamations, border closures and travel restrictions.
Employment-based immigration and new visa category
Biden promises to execute multiple changes to the employment-based immigration system.
The number of permanent, employment-based immigrant visas is currently capped at 140,000 per year. However, Biden indicates that 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.
He also has committed to working with the legislative branch to “reform temporary visas to establish a wage-based allocation process” and has supported “expanding the number of high-skilled visas and eliminating the limits on employment-based visas by country, which create unacceptably long backlogs.”
Furthermore, Biden plans to create a new visa category, which would allow “cities and counties to petition for higher levels of immigrants to support their growth.”
“The disparity in economic growth between U.S. cities, and between rural communities and urban areas, is one of the great imbalances of today’s economy. Some cities and many rural communities struggle with shrinking populations, an erosion of economic opportunity, and local businesses that face unique challenges,” Biden’s campaign platform reads. “Others simply struggle to attract a productive workforce and innovative entrepreneurs.”
“Public charge” rule
One of the most significant changes made to the U.S. immigration system by the Trump administration was the expansion of the “public charge” provision.
The new “public charge” rule, which first went into effect in early 2020, added extensive requirements for determining whether a foreign national would be deemed inadmissible to the U.S. based upon the likelihood of becoming a public charge.
Before the rule went into effect, several nationwide injunctions halted its implementation, however, a January 2020 Supreme Court ruling ultimately allowed USCIS to implement the regulation with little restriction.
Applicants for Adjustment of Status, as well as sponsoring employers and beneficiaries of applications to change or extend nonimmigrant status on Forms I-129 and I-539, are subject to varying levels of requirements.
The “public charge” rule lacks a “bright-line” test in making a public charge inadmissibility determination and has faced multiple legal challenges. But, the outcome of those cases may ultimately be inconsequential, as Biden has said he will reverse the policy once in office.
“Allowing immigration officials to make an individual’s ability to receive a visa or gain permanent residency contingent on their use of government services such as SNAP benefits or Medicaid, their household income, and other discriminatory criteria undermines America’s character as [a] land of opportunity that is open and welcoming to all, not just the wealthy,” the Biden campaign platform reads.
Biden was a part of the Obama administration that first introduced the Deferred Action for Childhood Arrivals (DACA) program via executive order in 2012.
Trump attempted to dismantle DACA during his presidency. However, the Supreme Court ruled in a 5-4 decision in late June that the government did not provide sufficient justification for shuttering the program.
Biden has pledged to protect DACA recipients, known as “Dreamers,” and their families while in the White House. He could even elect to expand the program, as he has said he hopes to pass legislative immigration reform to provide a roadmap to citizenship to “Dreamers and their parents.”
“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,” according to the Biden campaign platform.
DACA provides temporary protection to almost 700,000 undocumented young people. DACA recipients can receive work authorization in the United States, enroll at colleges and universities, and obtain a driver’s license. However, DACA currently provides no direct pathway to permanent residence or naturalization.
Earlier travel bans
Biden has vowed to overturn controversial travel bans put in place by the Trump administration.
The ban was originally issued in 2017 affecting 7 countries. In January 2020, “Travel Ban 4.0” added 6 more, currently impacting 13 majority Muslim nations.
“The Trump Administration’s anti-Muslim bias hurts our economy, betrays our values, and can serve as a powerful terrorist recruiting tool,” the Biden campaign platform reads. “Prohibiting Muslims from entering the country is morally wrong, and there is no intelligence or evidence that suggests it makes our nation more secure.”
Asylum and refugee cap
The Trump administration significantly curtailed refugee admissions during its four-year term, a policy Biden has pledged to reverse.
The cap for the number of refugees that could resettle in the U.S. was 110,000 when Obama left office in 2016. Trump reduced that number to 18,000, an all-time low, by FY2020.
Biden, meanwhile, has said he will increase that number back up to 125,000 during his presidency and “seek to raise it over time.”
“Offering hope and safe haven to refugees is part of who we are as a country,” the Biden team wrote in its campaign platform. “We cannot mobilize other countries to meet their humanitarian obligations if we are not ourselves upholding our cherished democratic values. … Biden embraces the core values that have made us who we are and will prioritize restoring refugee admissions in line with our historic practice under both Democratic and Republican Administrations.”
Increased naturalizations and pathways to citizenship
Some of Trump’s policies while in office oftentimes appeared aimed at making it more challenging for individuals who were attempting to naturalize and become citizens.
Biden seeks to ease restrictions and streamline the process, according to his campaign platform.
“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 platform reads.
Moreover, Biden writes in the campaign platform he will push Congress to pass legislation that “creates a clear roadmap to legal status and citizenship for unauthorized immigrants who register, are up-to-date on their taxes and have passed a background check.”
This could be foreshadowing of a longer-term solution for Dreamers, but likely a long shot without strong Congressional support.
Expanded opportunities and family-based immigration
Biden will also place an emphasis on “keeping families together and allowing eligible immigrants to join their American relatives,” according to his campaign platform.
“Biden will support family-based immigration by preserving family unification as a foundation of our immigration system [and] by allowing any approved applicant to receive a temporary non-immigrant visa until the permanent visa is processed,” according to the platform.
Biden will also support passing legislation through Congress that “treats the spouse and children of green card holders as the immediate relatives they are, exempting them from caps, and allowing parents to bring their minor children with them at the time they immigrate.”
The Trump administration made it more difficult for foreign nationals to receive visas to study in the United States and to stay in the country to work after graduation.
Trump’s May 2020 Proclamation suspended entry of certain students and researchers from China and the travel bans have impacted both F and J visa holders.
Most recently in September 2020, the Trump administration proposed a rule to prevent students from certain countries from staying in the U.S. longer than 2 years or endure a complex and highly backlogged extension process. The public submitted more than 32,000 comments on the proposed rule before the comment period ended on October 26, 2020. It is unclear whether the Trump administration would have sufficient time to finalize the rule before leaving office in January 2021.
With 1.1 million international students enrolled in U.S. colleges contributing more than $41 billion to the U.S. economy in 2019, President-elect Biden will likely seek to reverse or block policies/rules adversely impacting student visas.
“(Biden will) exempt from any cap recent graduates of PhD programs in STEM fields in the U.S. who are poised to make some of the most important contributions to the world economy,” per the campaign platform. “Biden believes that foreign graduates of a U.S. doctoral program should be given a green card with their degree and that losing these highly trained workers to foreign economies is a disservice to our own economic competitiveness.”
Implementation and timelines for such a plan, however, are unclear.
Biden has not yet publicly commented about many of the other student-centered policies and orders Trump has issued regarding student visas. However, advocacy groups like the Association of International Educators are hopeful for a return to an administration which has a deep understanding of the importance of international education.
President-elect Biden appears committed to unwinding much of the Trump administration legacy pertaining to immigration, especially those policies that were most contentious and are currently in litigation. However, Biden will likely face unprecedented challenges upon inauguration, with all indications that the global COVID pandemic will still be intensely raging, which will continue to threaten the U.S. economy.
Biden is also clearly committed to reengaging the U.S. in the international community. Like any incoming president, he will face challenges in prioritizing and investing the efforts of his administration among the various issues of national and international importance.
While it is clear that President-elect Biden intends to reshape U.S. immigration policy, it is not yet clear where that intention ranks among his many other priorities. Additionally, until early January, he cannot know if the Democrats will control the U.S. Senate. Without cohesion in the legislature, his path to comprehensive legislative reforms around immigration will be challenging.
Consequently, it is reasonable to expect that the Biden administration will change the vector of U.S. immigration policy substantially, and in some specific areas, quickly. It is less reasonable to expect that comprehensive reform, especially reforms involving legislation, will happen fast.