Biden and Trump

Introduction

The Trump administration brought the US immigration system to a standstill during the waning days of his presidency, especially for Dreamers, TPS holders, asylum seekers and other vulnerable immigrants.

Joe Biden´s election to the White House, however, promises to restore humanity and American values to our immigration system. On February 18, 2021, President Biden submitted the US Citizenship Act of 2021 bill to Congress. If Congress approves it, the bill will reform much of the Trump-era immigration system and create four new pathways to citizenship that could benefit up to 11 million individuals.

Couple with a baby sitting

The Four Pathways to Citizenship for Undocumented Immigrants

You must meet certain threshold requirements set forth in the bill before you can avail yourself of any of the four new pathways to citizenship. These requirements are as follows:

  • You must have been physically present in the United States on January 1, 2021,
  • You must have continued your presence until the approval of your permanent residence application, with no interruptions except for travel under advance parole or certain other exceptions.
  • If immediately after three years of continuous physical presence in the United States, you left the US voluntarily or by deportation between January 20, 2017, and December 31, 2020, you can seek a waiver of the above requirements based on humanitarian, family reunion, or US national interest grounds.

The four new pathways are typically not available if you were a permanent resident, refugee, asylee, or lawful nonimmigrant on January 1, 2021. Keep in mind, however, that you might be able to use other aspects of the immigration system to obtain permanent residence based on your legal status. Certain spouses and children of eligible intending immigrants can also seek permanent residence under the bill´s new pathways.

Woman looking at the Map

Fringe Benefits of the New Immigration System

If you qualify under the foregoing standards, you will enjoy the following fringe benefits:

  • You will not be subject to any numerical quota.
  • You may remain in the United States until the authorities have made a final decision on your application. In other words, you will not be deported or told to wait abroad until your immigrant visa is approved.
  • You can work in the US while your application is being adjudicated.
  • You can travel abroad while your application is being adjudicated, by applying for and receiving advance parole, This will allow you to pass through US ports of entry without an immigrant visa.

Once you know that you qualify under the above-listed threshold requirements, and you know that you will enjoy fringe benefits such as work authorization and advance parole, you will be able to select which immigration pathway to citizenship you qualify for under the new bill, and you can target your application accordingly.

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Pathway # 1: “Lawful Prospective Immigrants”

If you qualify under the threshold requirements of the bill, you will be able to seek Lawful Prospective Immigrant status. Under this status, you will be allowed to remain in the US in six-year renewable increments. Although you will not be counted as a lawful permanent resident, you will be able to work, study and purchase health insurance. You will also be able to travel abroad for up to 180 days and return without prior authorization, and you will be able to receive a Social Security number.

Five years after you are granted lawful prospective immigrant status, you will be eligible to apply for lawful permanent residence (a green card), unless you have left the United States for 180 days in a row during that time.

Under the new bill, even individuals who have been abroad for more than 180 days will not be prevented from applying for green cards if it was authorized in advance or if it was due to circumstances beyond their control. Lastly, applicants must be current on their federal income tax obligations to qualify for green cards.

DACA Dreamers

Pathway #2: DACA Dreamers (Childhood Arrivals)

If you arrived in the United States as an undocumented child immigrant, you likely know what it´s like to live in constant fear of deportation to a country you might barely remember and whose language you might not even speak. Public sympathy has always been with you, but the Trump administration´s attitude was hostile.

While the Obama administration granted temporary DACA (Deferred Action for Childhood Arrivals) benefits to temporarily keep “DACA Dreamers” in the United States, the Trump administration ordered a phase-out of DACA protections. Only judicial action was able to delay this phase-out, and only the election of Joe Biden prevented it from happening.

The immigration system created by the US Citizenship Act of 2021 bill would put DACA Dreamers and others who entered the US as children on a pathway to citizenship. If you arrived in the United States before your 18th birthday, whether or not legally and whether or not accompanied by an adult, the new bill will allow you to become a permanent resident if:

  • You have graduated from high school or obtained a high school equivalency certificate;
  • You registered for the Selective Service (if you are required to do so); and
  • You have either (i) completed at least two years of postsecondary level education, (ii) served in the US armed forces for at least two years, or (iii) have earned income for at least three years or at least three-fourths of the time you have been authorized to work in the United States.

The new bill would allow those who already hold DACA status and are eligible to renew their status to apply for green cards immediately. In almost all cases, spouses and children are also eligible to immigrate.

Man wearing silver handcuff

Pathway #3: Temporary Protected Status and Deferred Enforced Departure

You might have been granted Temporary Protected Status (TPS) or Deferred Enforced Departure (DED) if you were in the US when an armed conflict, political unrest, or a disaster occurred in your home country. TPS and DED are special protections, based on humanity and American values, that allow you to remain in the US legally until the extraordinary conditions in your home country subside. By itself, it does not allow you to apply for permanent residence.

The US Citizenship Act of 2021 bill will allow you to obtain permanent residence as long as:

  • Your current presence in the US is justified by TPS or DED;
  • You have been living in the US continuously since January 1, 2017; and
  • You were eligible for TPS or DED on January 1, 2017.

Your spouse and children will be eligible to immigrate with you.

Pathway #4: Agricultural Workers

You can obtain permanent residence if you meet the threshold requirements above, and if you worked at least 2,300 hours or 400 days performing agricultural labor in the United States, Unlike the other three pathways, you do not need to have entered or remained in the US illegally to qualify. You can become a green card holder under this pathway for example, if you worked legally in the US under the H-2A non-immigrant visa program. Your spouse and children can immigrate with you.

Banner of H1-B Visa

Employment Based Visa Reforms

The second most significant set of reforms contained in the US Citizenship Act of 2021 is its modification of the employment-based visa system that offers green cards for workers. Some of these reforms include:

  • Removal of per-country quotas on employment visas. Per country restrictions are often ludicrous–under the current regime, for example, Indians seeking second preference employment-based immigration to the US face a wait of 150 years!
  • The Department of Homeland Security would enjoy greater flexibility in adjusting annual caps on certain types of employment visas. Unused visas from previous years would also be added back in to increase an existing cap.
  • Child dependents who accompany a parent to the US under an employment visa (including H 1B) will no longer “age out” of the system. Currently, the age limit at the time of the last visa extension is 21.
  • The paperwork involved in obtaining an employment-based visa, especially in the employment verification process for applicants holding advanced STEM degrees from US universities, would be reduced.
  • Extending “dual intent” status to the F-1 student visa to allow STEM students graduating from U.S. universities to apply directly for permanent residence.
  • Increasing the annual quota for EB-3 immigration visas from 10,000 to 40,000 for workers who are neither skilled nor professional workers. This move will benefit workers in lower-wage positions, and will also protect these workers from exploitation.
  • Cease the current practice of counting spouses and children towards any remaining employment-based visa caps.
  • Allow spouses and children of H-1B workers to obtain employment in the United States.
  • Create a new employment-based visa program that recruits foreign workers for local and regional economic improvement projects, subject to a cap of 10,000 visas per year.
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Other Immigration Reforms

The immigration reform represented by the Citizenship Act of 2021 goes further than opening up new pathways to citizenship. Following is a description of some of its other immigration reforms.

Family Visa Reform

The primary family-based visa goal of the US Citizenship Act of 2021 is to reduce the backlog for these types of visa petitions. The Citizenship Act will seek to accomplish this by:

  • A new family unity exception: Allowing individuals who are waiting abroad for their visa priority date to become current to wait in the United States if they have approved family members here. This will greatly assist immigrant families that have been torn apart by Trump administration policies.
  • Increasing country-based visa quotas.
  • Reinstating the Central American Minors Program, which allows parents residing legally in the US to request that their children living in certain countries in Central America (Guatemala, Honduras, or El Salvador ) be temporarily admitted to the US. It will also expedite family reunification under the Central American Family Protection and Reunification Act.
Sad Ethnic woman crying after being bullied

National-Origin Based Discrimination

The Citizenship Act incorporates the National origin-based Anti-Discrimination Act for Nonimmigrants (the “NO BAN” Act) into its immigration system. This law would ban the type of executive order issued by former President Trump that barred the entry of immigrants based on their citizenship in certain predominantly Islamic countries.

Permission from Congress (in the form of repeal or amendment of the law) would be required to bar anyone from entering the United States based on race, religion, or citizenship, no matter who occupies the White House.

Bureaucratic Reforms

The US immigration system is clogged, inefficient, and in the eyes of many, broken. The Citizenship Act would add immigration courts, immigration judges, and USCIS adjudicators in an effort to reduce immigration and citizenship backlogs.It will also provide funding for private local programs that will benefit immigrant families.

Border Security

The Biden administration will seek to enhance border security, not so much through the use of a wall on our southern border as through smart border screening and aggressive pursuit of criminal organizations that smuggle people across the border.

The bill will reform US Customs and Border Protection (CBP) agent training curricula to add additional requirements for professionalism and to develop consistent standards of treatment for those detained by the CDP. It will also emphasize a more aggressive investigation of alleged misconduct by US immigration officials. Finally, it will take steps to protect border communities and immigrant families.

Addressing the Root Causes of Migration

The Citizenship Act bill allows for the provision of up to $4 billion in assistance to Guatemala, El Salvador, and Honduras. The aid contemplated by the bill is designed to reduce the corruption, poverty and violence that are the root causes of migration to the United States from Central America. The bill will also create processing centers that will allow citizens of these nations to apply for resettlement in the United States and elsewhere.

Girl Asylum Politically Policy

Asylum Reform

Applicants for U visas (crime victims) and T visas (victims of human trafficking) and applicants under the Violence Against Women Act (VAMA) will enjoy streamlined procedures under the bill that are designed to expedite applications.

Diversity Green Cards

The Citizenship Act bill raises the cap on diversity green cards (from the visa lottery) by 25,000, to 80,000 per year.

Nonimmigrant Visa Form

What the Bill Leaves Out

While the Citizenship Act bill is fairly comprehensive, it still manages to ignore important issues. In particular, the bill fails to adequately address the root causes of migration, and it does not adequately reform the nonimmigrant employment visa system.

For most employment-based immigrants, citizenship is the culmination of a long process that began in their home countries with the issuance of a temporary nonimmigrant visa. It is the unavailability of nonimmigrant employment visas, which the bill does little to address, that forms a bottleneck for a great number of otherwise qualified applicants.

New Employement Visas

Commendably, the bill does increase overall visa caps for several employment-based visas. What the bill does not do is create new visas for highly skilled immigration, or loosen many of the restrictive requirements for qualifying for the visa categories that do exist.

The US would do well to emulate countries like Canada and Australia, which have created new startup or entrepreneur visas. The US has benefited greatly from its status as a magnet for the world´s best and brightest, which has helped to grow our economy (think of Elon Musk, for example). With conditions improving in countries like China and India, there is a need to loosen restrictions in order to attract potential immigrants from those countries.

Will the Bill Become Law?

Conventional wisdom is nearly unanimous–the Citizenship Act bill will probably not be passed by Congress in its present form. A pared-down version of the bill is likely to make it through Congress at some point, though.

President Biden is unlikely to get everything that is contained in the bill. With a bit of luck and skillful political maneuvering, however, he might be able to get most of it. Hopefully, President Biden´s inauguration day of January 20, 2021, will prove to be a historic day in the history of US immigration.

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