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Introduction

The past four years haven’t been the best time for people who wish to immigrate to or even visit the United States. The Trump administration, as predicted, turned out to be perhaps the most immigration-hostile administration in US history. With the election of Joe Biden, however, things look to change dramatically. Unfortunately, some of these changes will take time to implement.

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Biden’s Promises

The totality of Biden’s plans to reform US immigration law and policy is not altogether clear — it must be derived from statements made and publications issued during his campaign. Biden has, however, promised to:

  • Enact comprehensive immigration reform within his first 100 days in office. This is a task much easier said than done, even if the Democrats manage to win control of the Senate.
  • Stop building the border wall.
  • Rescind the “Muslin ban”.
  • Re-institute DACA, and allow beneficiaries to receive federally guaranteed student loans.
  • End the “Remain in Mexico” policy.
  • Revoke the new public charge rules.
  • Raise the refugee ceiling from 18,000 to 125,000.
  • Fast-track citizenship for agricultural workers.
  • Raise the H-1B visa quota.
  • Eliminate country-based quotas in employment visas.
  • Provide a roadmap to citizenship for undocumented migrants currently in the US (subject to tax payment and submission to background checks).
  • Offer a “startup visa” for foreign entrepreneurs (possibly).

The foregoing is only a partial list of immigration-related promises made by Biden, either verbally or in written documents.

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What He’s Up Against: The US Immigration Law System

Unfortunately, even the President of the United States is not a fairy godmother who can simply wave a magic wand and make all the bad stuff go away. Biden can accomplish some of his immigration goals immediately, but others will take time to implement.

The skeleton of the US immigration law system is based on statutes passed by both houses of Congress. These statutes remain in force until they are repealed or modified by both houses of Congress, a prospect that may be unlikely if Republicans maintain control of the Senate. Statutes, however, provide only rough guidelines to immigration policy.

The next level down is immigration regulations. Immigration regulations must be based on a statute, and they cannot be inconsistent with the statute. Regulations typically provide more detail by “filling in the blanks” left by the vague statutory language. Regulations are passed by regulatory agencies such as the Department of Homeland Security, the officers of which are appointed by the President. Changing regulations typically takes several months.

Policies are essentially executive branch interpretations of the meaning of immigration regulations. Policies can be changed more quickly than regulations can. In fact, many of them can be changed immediately, although in some cases prudence dictates a period of preparation before any changes are finalized.

Immigration Reform Goals

Immigration Reform Goals: Four Different Kinds

Given the foregoing legal superstructure, Biden’s immigration reform goals can be divided into four categories:

  • Goals that can be accomplished with the stroke of a pen. Most of these goals are policy goals that can be accomplished simply by issuing an executive order that repeals an executive order issued by the Trump administration. A good example of this would be the revocation of the new public charge rules. All told, Donald Trump issued over 400 executive orders and actions.
  • Goals that can be accomplished with the stroke of a pen plus a backup plan. An example of this would be the “Remain in Mexico” policy, that could be done, but would not be feasible to implement with nothing more than the stroke of a pen.
  • Goals that require the implementation of entirely new regulations or the repeal of old ones.
  • Goals that require congressional approval by both houses of Congress.
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Immigration Priorities for the Biden Administration

Everything cannot be done at once. The following suggested immigration agenda attempts to strike a balance between handling the most urgent problems (asylum seekers at our southern border, for example) and the most important problems (repairing the H-1B program, for example).

Repeal the “Muslim ban”

Because the President enjoys such broad authority over immigration, Biden will probably need to do nothing more than issue an executive order repealing the Muslim ban in order to make it happen. What he cannot do, of course, is undo the damage that has already been done by delaying the entry of people from these countries for so long.

Stop the Construction of the Border Wall

Biden has pledged to follow a “not another brick” policy concerning Trump’s border wall. Congress is normally responsible for funding such an undertaking anyway, and Trump took advantage of financial sleight-of-hand (shifting already-approved funds from one purpose to another) to build as much of the wall as he’s been able to so far.

Nevertheless, the Trump administration committed the federal government to construction contracts, thereby typing Biden’s hands for some sections of the wall. For this reason, it is unlikely that Biden will be able to immediately stop building the border wall. Additionally, don’t expect a Biden administration to tear down any already-constructed structures.

Re-open the Mexican border

It is possible that Biden would hesitate before fully re-opening the US border with Mexico, due to COVID-19 concerns. Another possible barrier might be Mexico’s own reluctance to open its side of the border to land traffic, which could trigger a reciprocal response from the US. If widespread vaccination leads to herd immunity, however, the COVID-19 issue would become moot. We would need more than a functioning border to assist Central American migrants, however.

Preserve and fortify DACA

Biden can, of course, revive DACA by issuing an executive order and thereby prevent ICE from rounding up and deporting childhood arrivals. Biden also plans to allow DACA beneficiaries to work in the US and to obtain federally guaranteed student loans. No regulatory hurdles stand in his way. Not many political hurdles await either since DACA beneficiaries are viewed with sympathy by most Americans.

Re-open door

Re-open the Door for Refugees

Biden has pledged to raise the refugee ceiling to an all-time high of 125,000 refugees per year. The practical bottleneck that prevents this policy from becoming a “stroke of the pen” decision is the ability to resettle these refugees in the United States. Although a number of aid organizations specialize in this task, it may be a while before they possess the resources to accommodate such a sudden increase in the number of refugees allowed into the United States.

Restore humanity to the Asylum Process

Asylum is one area of immigration law that human rights activists are eager to see the change immediately — yet it is one of these areas where swift change is likely to be impossible. Tens of thousands of asylum seekers wait along the Mexican side of the Rio Grande River to be allowed into the US in response to the “Remain in Mexico” policy, while their asylum claims inch forward in US immigration courts.

These camps are marked by high crime rates, near-universal squalor, kidnappings, financial exploitation by criminal gangs, shortages of basic necessities, and contaminated food and water. Would-be asylees have no security because they have no legal status — even their makeshift tents can be removed at any moment by Mexican authorities.

The problem with allowing these people into the United States all at once is the same as the problem with raising the refugee quota — the sudden influx of so many asylum seekers, who took months to gather, would likely overwhelm the ability of the US immigration system to handle them. The Biden administration will need to build and fortify a system of housing these asylees and processing their asylum applications within a reasonable time.

De-target Undocumented Immigrants

In January 2017, five days after his inauguration, Trump signed an executive order that put all undocumented immigrants in the crosshairs of Immigration and Customs Enforcement (ICE) by rendering all of them subject to arrest for immigration violations alone. This represented a change from the Obama-era policy, which prioritized undocumented immigrants with criminal records other than mere immigration violations.

In contrast with Obama administration policies, the Trump administration also conducted numerous worksite raids. The practice of indiscriminate targeting undocumented immigrants can easily be ended with the stroke of a pen — all Biden has to do is issue an executive order re-establishing Obama era enforcement priorities.

Undocumented immigrants would still be subject to arrest under US law, but they would be unlikely to be targeted or apprehended unless they had criminal records.

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Back away from “prison for profit”

On the same day that he issued the executive order targeting non-criminal undocumented immigrants, Trump also ordered Homeland Security to increase the space available in immigration detention centers by adding more facilities. This order inevitably led to the expansion of the use of privately-run, for-profit prisons to house undocumented immigrants.

Given the for-profit nature of these centers combined with the helpless state of the inmates and the hostile attitude of the Trump administration, it is no surprise that reports of abuse and neglect have become widespread. Biden himself has wisely stated, “No business should profit from the suffering of desperate people fleeing violence.”

Change will come slowly

Nevertheless, this egregious human rights violation is likely to turn out to be one of the most intractable, because the federal government has already entered into long-term contracts with private prison companies. Some of these contracts will be valid for the next 15 years. In fact, most prisoners held by ICE are held in either private prisons or state and local jails. Dropping the private prisons would require ICE to release thousands of detainees.

What Biden can do is stop signing new private prison contracts and institute new policies that de-emphasize detention as a remedy. Canceling existing private prison contracts would be difficult and would probably require congressional approval.

Rescind “public charge” rule

Rescind the new “public charge” rule

Safeguards have long been in place to prevent new immigrants from becoming financial burdens on US taxpayers, or “public charges.” What the Trump administration did was to greatly expand the definition of “public charge” and make it more difficult to avoid this designation. Anyone deemed likely to become a public charge will be declared inadmissible to the United States, even if they have already entered the country.

On November 2, 2020, the day before the presidential election, the new public charge rule was vacated nationwide by the U.S. District Court for the Northern District of Illinois. Since the ruling did not come from the Supreme Court, however, it can be appealed, leaving people who qualified for immigration under the old public charge rule, but not under the new one, in a state of limbo.

What Biden can do is to keep an eye on developments within the judiciary while preparing to repeal the regulation in case the new public charge rule is ultimately upheld. Repealing a regulation takes more than an executive order, however — several months are required, including a public comment period.

Fragment of Stamp H1B USA Worker Visa.

Revitalize employment-based Immigration

Most experts agree that the Trump administration’s hostility towards employment-based immigration results in net harm to the US economy. While countries like Singapore and India complain of “brain drain”, the US under Trump has been rejecting the visa applications of highly skilled workers from some of these same countries.

H-1B visas are subject to an annual quota, and Biden has promised to raise the quota. He has also promised to end country-based limits on the issuance of employment-based immigration visas, a practice that has resulted in many Indian tech wizards being forced to wait decades for green cards. The election of Kamala Harris, who is half-Indian, as Vice President, will no doubt exert a positive impact on this process.

The most immediate impact that the Biden administration can exert is to dramatically lower the current 29 percent rejection rate for initial H-1B visa applications (up from 6 percent in 2015). Biden can also reverse course on several Trump administration initiatives designed to hobble the H-1B program such as ending the H-1B lottery, inflating H-1B salaries to increase employer reluctance to hire, and changing the definition of “specialty occupation” to make qualifying for H-1B status more difficult.

Photo of men sitting by the table while writing

Rescind the Rule limiting the period of stay for International Students

Despite the fact that 75 percent of full-time graduate students in key technology fields at U.S. universities come from abroad, and the fact that immigration to the US remains popular among international students, the Trump administration has been seeking to make it difficult for international students to work in the US after they graduate.

One of the ways in which the Trump administration has been trying to block international students from working in the US is by trying to pass a regulation that would limit the period of stay for international students. If the regulation passes before Inauguration Day, then Biden would need to make time-consuming regulatory changes to repeal this policy.

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Processing the Backlog

Under the Trump administration’s various obstructionist policies, both the USCIS and the State Department have built up tremendous backlogs for visas and other immigration benefits. There is no quick way to burn through the backlog — even hiring new USCIS and State Department personnel might only speed things up from “very slow” to “fairly slow.” Indeed, some of these backlogs might not be cleared up before the next presidential election in 2024.

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Comprehensive Immigration Reform

A comprehensive immigration reform bill would be much more far-reaching than the piecemeal approach described above. Such legislation might get us a roadmap to citizenship for undocumented immigrants, a “startup visa”, and many more innovations. Comprehensive immigration reform, however, would have to make it through both houses of Congress, a prospect that appears unlikely as long as Republicans control the Senate.

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