President Joe Biden’s inauguration on January 20, 2021, ushered in a new era of sweeping immigration policy and plans. President Biden’s immigration plans intended to modernize and reform the United States’ immigration system, reverse strict Trump Administration immigration actions, reassert commitment to asylum-seekers and refugees, and tackle the root causes of irregular migration occurring in the United States. Now that over a year has passed and with President Biden’s second State of the Union Address being made on March 1, 2022, we can review immigration policy in place and see President Biden’s progress towards the vision he laid out early on in his presidency.

President Biden’s Bills Introduced to Congress

The Biden Administration’s plan towards a revamped immigration system started strong with comprehensive bills introduced to Congress such as the introduction of the U.S. Citizenship Act, which provided an eight-year path to citizenship for the estimated 10.5 million unauthorized immigrants in the United States, provisions to improve the existing family-based immigration system, revise employment-based visa rules, provide an avenue for DACA recipients to obtain permanent residence and to increase the number of diversity visas available to applicants. However, US Congress, COVID-19, and long immigration backlogs have effectively roadblocked the US Citizenship Act which has since been placed on hold and in limbo with the US Subcommittee on Immigration and Citizenship. Since April 28, 2021, there has been no progress and the bill remains in review.

President Biden’s next major bill affecting immigration, the Build Back Better Act faced similar objections from Congress notably from Democratic Party members Arizona Senator Kyrsten Sinema and West Virginia Senator Joe Manchin who refused to vote in favor of the act due to disagreements about the size and funding needed. The Build Back Better Act is a proposed comprehensive climate change, social policy, and infrastructure plan that included immigration policy provisions to provide approximately 7 million unauthorized immigrants the ability to apply for legislative protections from deportation and to apply for work permits and licenses. Without the 51 Democratic Senator votes needed to move the bill to the next stage, President Biden and Congress are at an impasse and the Build Back Better Act has been effectively placed on hold.

Executive Actions

President Biden has had to rely on executive actions, rather than legislative actions requiring congressional approval to address some of the immigration policy promises he made during his path to the presidency. These executive actions reverse many of former President Trump’s changes to the United States’ immigration system. President Biden’s executive orders included many reversals on draconian immigration measures instituted by former President Trump.[1] In President Biden’s first year, he issued 81 executive orders in comparison to former President Trump who issued 55 executive orders in his first year. According to the nonpartisan nonprofit organization, Ballotpedia, President Biden has signed altogether 81 executive orders, 57 presidential memoranda, 202 proclamations, and 39 notices totaling 379 executive actions.[2] Comparatively, according to the nonpartisan Migration Policy Institute, former President Donald Trump executed 472 total executive actions over the tenure of his entire four-year term.[3]

President Biden’s executive actions resulted in numerous changes to US immigration policy including halting the construction of the US-Mexico Border Wall, actions ending the travel ban on 14 countries many of which had Muslim backgrounds, and an executive order to provide protections for DACA recipients and reaffirming the United States’ DACA program after former President Trump’s attempts to terminate the program.

Review on Executive Actions and Policy Effects

President Biden’s executive actions have resulted in changes across different areas of immigration policy. With the sheer number of actions taken, we highlight the major sector-changing actions that had the greatest effects on US immigration. These categories are broken down below:

Entry Bans on 14 Countries Instituted between 2017-2020

Between 2017-2020 former President Trump instituted a series of travel bans preventing nationals from 14 countries predominantly Muslim countries from entering the United States. Such measures include Executive Order 13780, Proclamation 9645, Proclamation 9723, Proclamation 9983. One of President Biden’s first actions in office included reversing these travel bans through Proclamation on Ending Discriminatory Bans on Entry to the United States which resulted in the revocation of Executive Order 13780, Proclamation 9645, Proclamation 9723, and Proclamation 9983. Thus, lifting the bans that halted the admissions of travelers from the 14 banned countries. This has resounding effects including reuniting families and allowing travelers from these 14 countries to return to the United States. 

Deferred Action for Childhood Arrivals (DACA).

The Trump Administration made several attempts to dismantle DACA announcing in 2017 that the United States would halt all new applications. It took three years for these actions to be heard by the US Supreme Court which ruled that the Trump Administration’s attempts to terminate the program were unlawful. Acting Department of Homeland Security Secretary Chad Wolf issued a memorandum placing DACA on pause and barring first-time applications.[4] The Trump Administration made numerous attempts to terminate or curtail the program leading up to the 2020 US Presidential Election. In response, President Biden issued Preserving and Fortifying Deferred Action for Childhood Arrivals (DACA) which reverses the Trump Administration attempts to dismantle DACA. The memorandum issued a statement that reads, “DACA reflects a judgment that these immigrants should not be a priority for removal based on humanitarian concerns and other considerations and that work authorization will enable them to support themselves and their families, and to contribute to our economy, while they remain.”

Refugee Resettlement Procedures

The Trump Administration placed a 15,000-person limit on annual refugee admissions to the United States during former President Trump’s final year of tenure. Following President Biden’s election, he issued a statement that he would not increase the 15,000-refugee limit due to national interests.[5] However, facing critical commentary from Democratic constituents, he issued a memorandum, Statement by President Joe Biden on Refugee Admissions which reported a raise in the annual refugee admissions cap to 62,500 in the 2021 fiscal year with a goal of 125,000 refugee admissions for 2022. However in FY 2021, only 11,411 refugees (approximately 18% of President Biden’s target of 62,500) had been met. In comparison, the final year of the Trump Administration had more refugee admissions at 11,814.[6] According to National Public Radio (NPR), FY 2021 numbers did not include the tens of thousands Afghans brought to the United States and other immigration statuses due to being under a different program such as humanitarian parole which are not included in the refugee tally. According to President Biden, these goals will be hard to hit, but the Biden Administration is “going to use every tool available to help these fully-vetted refugees fleeing horrific conditions in their home countries.”

US-Mexico Border Wall and Immigration Enforcement Policies.

President Biden issued Proclamation on the Termination Of Emergency With Respect To The Southern Border Of The United States And Redirection Of Funds Diverted To Border Wall Construction which halted the wall construction project on the US-Mexico border to redirect funds set by the previous administration elsewhere. This proclamation included major changes to the US immigration enforcement policy including specific provisions on strategizing to address the root causes of “irregular migration” and for “collaboratively managing migration.”

Throughout 2021, President Biden issued a series of directives on immigration enforcement. On his first day of office, President Biden revoked former President Trump’s 2017 Executive Order 13768. Executive Order 13768 called for the removal of all undocumented immigrants living in the United States and allowed the federal government to withdraw federal funding from “sanctuary states” that provided safe harbors for these undocumented immigrants. President Biden’s Executive Order on the Revision of Civil Immigration Enforcement Policies and Priorities reversed Executive Order 13768 and directed DHS to implement new policies intended to balance border security, public safety, and humanitarian considerations.[7] President Biden’s reversal called for revised policies within 100 days and issued a pause on the removal of noncitizens except for noncitizens who pose a danger to national security; who were not in the United States before November 1, 2020; who voluntarily waive any rights to remain in the United States; and who the acting ICE Director determines must leave the country. As one of the largest immigration actions by the Biden Administration, this resulted in a major drop in ICE deportations.

Separation of Families

President Biden made a promise during his election campaign to reunite children separated from their families at the United States-Mexico border. In his first couple weeks of office, he issued Executive Order on the Establishment of Interagency Task Force on the Reunification of Families intended to reverse draconian rules set in place by the Trump Administration that had a zero-tolerance policy on border control.[8] These actions resulted in the separation of thousands of children from their parents. On June 20, 2018 after facing protests and critical response, former President Trump reversed the practice of familial separation, but the effects were already made. By the time, over 3,900 children had been separated from their families at the US-Mexico border.[9] The Department of Justice reversed the zero-tolerance policy on January 26, 2021[10] and President Biden issued Executive Order on the Establishment of Interagency Task Force on the Reunification of Families to help reunify the separated families.

Temporary Protected Status (TPS)

The Trump Administration sought to end the Temporary Protected Status program for citizens of several countries notably Liberia, El Salvador, Haiti, Guatemala, Nicaragua, Sudan, Honduras, and Nepal. US Courts shut down the Trump Administration’s attempts to dismantle the TPS program for these countries’ nationals[11][12] with President Biden reinstating TPS for Liberian nationals through a memorandum Reinstating Deferred Enforced Departure for Liberians. This memorandum sets the policies to allow Liberian nationals to continue using the Temporary Protected Status program for those who have not been convicted of an aggravated felony, two or more crimes involving moral turpitude, or persecution of any person on account of race, religion, nationality, political opinion, or membership in a particular social group.

Asylum and Protections

On February 02, 2021, President Biden issued a comprehensive executive order titled, Executive Order on Creating a Comprehensive Regional Framework to Address the Causes of Migration, to Manage Migration Throughout North and Central America, and to Provide Safe and Orderly Processing of Asylum Seekers at the United States Border, and Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans which involve policies that were intended to reverse certain Trump Administration actions that placed burdens on the US asylum system particularly amongst those from Central American countries. President Biden’s executive order affecting the US asylum system provided policy clarifications on how to process refugee applications from Central America notably from El Salvador, Guatemala, and Honduras, and to added clarifications on how to process asylum claims at the US-Mexico border. Specifically, President Biden ordered a review of the Migrant Protection Protocols, and to end “Prompt Asylum Case review” and the “Humanitarian Asylum Review Program” which were implemented by the Trump Administration to lessen the amount of time asylees have to prepare for credible fear interviews and limit their contact with legal representatives.

President Biden’s executive orders rescinded several of former President Trump’s executive actions including previously mentioned Executive Order 13841, Affording Congress an Opportunity To Address Family Separation, Executive Order 13767, Border Security and Immigration Enforcement Improvements, Presidential Memorandum, Additional Measures to Enhance Border Security and Restore Integrity to Our Immigration System, Presidential Memorandum, Enforcing the Legal Responsibilities of Sponsors of Aliens (“Public Charge Rule”), Proclamation 9880, Addressing Mass Migration through the Southern Border of the United States, and Presidential Memorandum, Ending ‘Catch and Release’ at the Border of the United States and Directing Other Enhancements to Immigration Enforcement.

 

2022 and Beyond: A Look into the Future of Biden Immigration Policy Changes 

It is clear that President Biden has intentions to modify and revamp the US immigration system through his executive actions, but it remains to be clear whether or not these changes are permanent. Without Congressional approval, many of these actions can be reversed by future executive actions by future presidents. Looking into 2022 and beyond, President Biden has already outlined several new policies to help revamp the US immigration system with a notable focus on professionals in Science, Technology, Engineering, and Mathematics (STEM).

Highlighting President Biden’s Policy Proposals for 2022 and beyond, we look at a few key areas.

National Interest Waiver Clarifications for STEM Professionals with Employment-Based Immigrant Petitions 

In a 2022 Fact Sheet, President Biden made a statement assigning USCIS with the task of clarifying policies to help explain how the national interest waiver can be used for persons with advanced degrees in STEM fields. According to the fact sheet, this update is intended to promote efficient and effective benefit processing as USCIS reviews requests for national interest waivers.

STEM-based professionals should see a rise in approved petitions in the EB-2 National Interest Waiver program with the additional clarifications making the process of applying for a national interest waiver clearer and more efficient.

O-1A Visa Updates

The Biden Administration added new requests for the Department of Homeland Security to clarify how it determines eligibility for those applying under O-1A (extraordinary ability in the sciences, education, business, or athletics not including arts, motion pictures, or television industry). According to USCIS, “The new update provides examples of evidence that may satisfy the O-1A evidentiary criteria and discusses considerations that are relevant to evaluating such evidence, with a focus on the highly technical nature of STEM fields and the complexity of the evidence often submitted.”[13]

This new O-1A guidance should lead to further success rates in the STEM fields as previously, the O-1A visa has been difficult to obtain due to unclear criteria that apply to professionals in science, technology, engineering, and mathematics.

STEM OPT Expansions. 

According to the Department of Homeland Security, 22 new fields of study have been added to the STEM Optical Practical Training (OPT) program as part of the Biden Administration’s efforts to expand eligibility for STEM OPT. Such additions include new emerging technologies such as The fields include Cloud Computing, Anthrozoology, Geography and Environmental Studies, Climate Science, Mathematical Economics, Business Analytics, Data Visualization, Financial Analytics and others. For a full list and more details, please see here.

Opportunities should increase for STEM students notably in emerging technologies to find more programs of allowing for optical practical training.

Expanded Programs For J-1 Exchange Visitors

The Biden Administration has proposed in its 2022 Fact Sheet to expand the United States’ J-1 Visa program to include two new routes for individuals in STEM fields. The first includes the U.S. Department of State announcing the Early Career STEM Research Initiative to facilitate temporary exchange visitors coming to and from the United States to engage in STEM research through research, training, or educational exchange visitor programs with host organizations, including businesses reserved for nonimmigrant BridgeUSA exchange visitors. The Biden Administration tasked the Department of State’s Educational and Cultural Affairs Program to lead this initiative and to announce new guidance to help provide clarifications on how prospective J-1 students can use this program.[14]

According to the program, undergraduate and graduate students in STEM fields on the J-1 visa can use this program and stay on the J-1 visa for periods up to 36 months.

President Biden’s Agenda for 2022 on H-1B Visa Reforms

The Biden Administration has made resounding attempts to reverse Trump Administration policies during 2021 and appears primed to continue the efforts in 2022. According to executive rules published in late 2021, the Biden Administration aims on addressing the United States’ H-1B system. Titled Modernizing H-1B Requirements and Oversight and Providing Flexibility in the F-1 Program, the Biden Administration tasked the Department of Homeland Security to revise and clarify H-1B procedures including revising “regulations relating to “employer-employee relationship” and provide flexibility for start-up entrepreneurs; implement new requirements and guidelines for site visits including in connection with petitions filed by H-1B dependent employers whose basic business information cannot be validated through commercially available data; provide flexibility on the employment start date listed on the petition (in limited circumstances); address “cap-gap” issues; bolster the H-1B registration process to reduce the possibility of misuse and fraud in the H-1B registration system; and clarify the requirement that an amended or new petition be filed where there are material changes, including by streamlining notification requirements relating to certain worksite changes, among other provisions.”

Increased USCIS Filing Fees and Premium Processing Fees

According to a rule published in late 2021, the Biden Administration aims on increasing fees charged by USCIS for immigration and naturalization benefit requests including premium processing fees and revising certain fee waiver and exemptions. This rule, titled U.S. Citizenship and Immigration Services Fee Schedule aims to increase fees similarly to the Trump Administration, although not at the same level. The added proposal includes also implementing legislation to allow USCIS to offer premium processing for Form I-539, Change or Extend Status applications for F, J, and M visas, as well as E, H, L, O, P, and R dependents. This could pave the way for faster processing times for H-4 spouses awaiting their H-4 Employment Authorization Documents.

Green Card and Visa Processing Backlogs

Those who have participated in the permanent residency and visa processing system understand that the United States during 2020 and 2021 faced unprecedented backlogs regarding processing times. Consulates abroad are behind and many individuals have been waiting for months for interviews and results about their visas. Many visa holders have been advised to stay in the United States because they may not be able to return due to the backlogs in visa processing. Resultingly, the US Department of State issued directives to temporarily allow consular officers to waive in-person interviews for those under H-1B, H-3, L, O, P, and Q visas through December 31, 2022. We foresee the Biden Administration developing new directives to help process and lessen the green card and visa processing backlogs.

Conclusion

President Biden faced a great amount of pressure in 2021 regarding his ability to work with Congress and 2022 may provide similar obstacles with the potential reintroduction of the bill for the Build Back Better Act. Mid-term elections are near and with a focus on immigration policy, expect continued contentious hearings between the Biden Administration and Congress through 2022 and likely 2023. Prominent topics such as the “Public Charge Rule” and “Deferred Action for Childhood Arrivals (DACA)” as well as immigrant and nonimmigrant pathways will be on the primary topic list for the Biden Administration and similar to 2021, President Biden may find himself at an impasse with US Congress on pushing his immigration policy plans forward. The 2022 State of the Union Address should bring additional clarifications as the country waits to hear what the President has to say.

ILBSG is proud to provide this summary. If you have questions or comments, contact us.

 

[1] https://www.federalregister.gov/presidential-documents/executive-orders

[2] https://ballotpedia.org/Joe_Biden%27s_executive_orders_and_actions

[3] https://www.migrationpolicy.org/news/trump-472-executive-actions-immigration-during-presidency

[4] https://www.dhs.gov/sites/default/files/publications/20_0728_s1_daca-reconsideration-memo.pdf

[5] https://www.whitehouse.gov/briefing-room/presidential-actions/2021/04/16/memorandum-for-the-secretary-of-state-on-the-emergency-presidential-determination-on-refugee-admissions-for-fiscal-year-2021/

[6] https://cis.org/Report/FY-2021-Refugee-Resettlement-Roundup

[7] https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-the-revision-of-civil-immigration-enforcement-policies-and-priorities/

[8] https://www.justice.gov/opa/pr/attorney-general-announces-zero-tolerance-policy-criminal-illegal-entry

[9] https://apnews.com/article/az-state-wire-donald-trump-immigration-lifestyle-government-and-politics-54e2e5bbff270019d8bda3c81161c7c7

[10] https://apnews.com/article/politics-immigration-only-on-ap-mexico-b04e63264cd13f248c94f1e90200460a

[11][11] https://www.uscis.gov/humanitarian/temporary-protected-status

[12] https://www.uscis.gov/humanitarian/temporary-protected-status/temporary-protected-status-designated-country-nepal

[13] https://www.uscis.gov/newsroom/alerts/uscis-provides-clarifying-guidance-for-o-1-petitions-with-a-focus-on-stem-fields

[14] https://j1visa.state.gov/opportunity-for-academic-training-extensions-for-j-1-college-and-university-students-in-stem-fields/

biden immigration policy Immigration Policy State of the Union