Summary of President Biden's Executive Orders relating to Immigration

The Biden Administration is working to pass the U.S. Citizenship Act, a bill that includes pathways to citizenship and provide labor protections, prioritizing smart border controls, and address the root causes of migration. President Biden has signed off on executive orders reversing the restrictive polices implemented during the Trump Administration. Additionally, the immigration bill will henceforth replace the term “alien” with “noncitizen” in immigration laws.

Green Cards and Citizenship for Undocumented Individuals
The bill proposes legislation to grant green cards and a path to citizenship to an estimated 11 million people who entered the United States before January 1, 2021. In the proposed bill, undocumented individuals and those with temporary legal status will be able to apply for green cards after five years as long as they pass criminal and national security background checks and pay their taxes. DACA recipients, immigrant farmers, and those with Temporary Protective Status who meet specific requirements are eligible for green cards upon legislation. All green card holders that are able to pass additional background checks and exhibit knowledge of U.S. civics and English are eligible to apply for citizenship after three years in green card status. According to the Secretary of Department of Homeland Security (DHS), those who were deported on or after January 20, 2017 and were physically in the U.S. for at least three years prior to removal may have the presence requirement waived. Other provisions will be introduced to decrease the time to wait outside the U.S. for green cards, provide development aid to Central America and reduce the 1.2-million-case backlog in the Immigration Courts.

The memo will also extend work permits and deportation protections for certain Liberian immigrants in the U.S. Additionally, USCIS will be required to adjudicate the green card applications of Liberians who were “eligible for a legalization program passed by congress in 2019.”

Reunite Families
The Biden Administration has prioritized reforming family-based immigration which will include keeping families together, clearing backlogs, recapturing unused visas, ending extensive wait times, and increase per-country visa caps. This includes terminating the three- and ten-year bars from section 212(a)(9)(B) of the Illegal Immigration Reform and Immigrant Responsibility Act. Additionally, approved family-based petitions can join family in the U.S. on a temporary basis while waiting for availability for green cards.

Embracing Diversity and Eliminating Discrimination
The bill supports eliminating discrimination of LGBTQ+ families, granting protections to orphans, widows, children, and Filipino World War II veterans that fought with the U.S. The NO BAN Act prohibits discrimination based on religion and will limit presidential authority to implement future bans. Diversity Visas will also increase from 55,000 to 80,000.

Immigrant and Refugee Integration
New funding will be provided to promote the integration of immigrants and refugees to state and local governments, private organizations, educational institutions, community-based organizations, and non-profit organizations. It will be used to expand programs promoting integration and inclusion, increase English-language instruction, and provide assistance to individuals applying for citizenship.

Economic Growth and Employment Verification Improvements
The bill aims to clear employment-based visa backlogs, recapture unused visas, end extensive wait times, and abolish per-country visa caps. It provides dependents of H-1B visas work authorization and prevents children from “aging out” of status. This bill makes it easier for graduates of U.S. universities with advanced STEM degrees to remain in the U.S. upon graduation; improve access to green cards for lower-wage sector workers; and eliminates unnecessary restrictions for employment-based green cards. The bill will stimulate regional economic development, grant DHS the jurisdiction to adjust green card distributions to reflect macroeconomic conditions, and will encourage higher wages for non-immigrant, high-skilled visa recipients to avoid unwarranted competition with U.S. workers. It will be required for DHS and the Department of Labor (DOL) to establish a commission requiring recommendations for improving the employment verification process for labor, employer, and civil rights organizations. The bill outlines more accessibility to U visa relief for workers who suffer serious labor violations and cooperate with worker protection agencies. It will protect workers who have been threatened with deportation and allow labor agencies to interview those workers. These protections are extended to migrant and seasonal workers and will distribute severe penalties for employers who violate labor laws.

Technology and Infrastructure: Crack Down on Crime
Budget allocations for immigration enforcement will authorize additional funding for the Secretary of DHS to develop and implement a plan to utilize high throughput scanning technology at all ports of entry (land, air, and sea) to expedite screenings and improve the ability to detect narcotics and other contraband. This also authorizes and provides funding for plans to improve the infrastructure of ports of entry to process asylum seekers in an efficient manner and detect, ban, intervene and prevent narcotics from entering the U.S. The main focus is to develop and implement a flexible strategy of solutions and technology to manage and secure the U.S.-Mexican border, improve detecting illicit activity, evaluate the success of security operations along the border and be able to relocate officers along the Border Patrol Sector.

Legislation will enhance the ability to prosecute individuals involved in smuggling and trafficking networks responsible for the exploitation of migrants. It will also expand investigations, intelligence collection and analysis in accordance with the Foreign Narcotics Kingpin Designation Act. This will increase punishments against foreign narcotics traffickers, organizations and networks. For this to succeed, this will require the effective collaboration of the Federal Bureau of Investigation (FBI), Drug Enforcement Agency (DEA), DHS and the Secretary of State to aid anti-gang task forces in Central American countries.

Managing and Protecting the Border and its Communities
Funding will be provided for effective training for agents and officers. This will be enforced with the creation of a Border Community Stakeholder Advisory Committee that will provide more special agents from DHS the ability to “investigate criminal and administrative misconduct, and requires the issuance of department-wide policies governing the use of force.” The Government Accountability Office (GOA) is directed by the bill to monitor the impact of DHS’s authority to prioritize prevention of needless deaths along the U.S.-Mexican border. This encourages waiving laws to expedite the construction of barriers and roads as rescue beacons for those crossing into the U.S. The bill authorizes and provides funding for DHS, the Department of Health and Human Services (HHS) and other nongovernmental experts to develop directions and protocols for specialized care of individuals, families, and children in Customs and Border Protection (CBP) custody.

Addressing causes of Migration
President Biden’s $4 billion four-year inter-agency plan will address the causes of migration in Central America, including assistance to countries such as El Salvador, Guatemala, and Honduras. The collaboration between countries and agencies would aim to reduce push factors such as corruption, violence, and poverty within the country. The bill would create safe and legal channels for people seeking protection, establish Designated Processing Centers throughout Central America for registering and processing displaced persons for refugee resettlement and other lawful migration avenues to the U.S. or other partner countries. The bill re-institutes the Central American Minors program to reunite children with relatives in the U.S. and create a Central American Family Reunification Parole Program to more quickly unite families with approved family sponsorship petitions.

Improve Immigration Courts and Protect Vulnerable Individuals
Legislation will expand family case management programs, reduce immigration court backlogs, and improve technology of immigration courts, and expand training for immigration judges. This will provide judges and adjudicators with discretion to review cases and grant relief to worthy individuals. Legal orientation programs and counsel for children, vulnerable individuals, and others when necessary to ensure the fair and efficient resolution of their claims are authorized funding under the bill. Additionally, funding will be provided to school districts working with unaccompanied children, while clarifying sponsor responsibilities for such individuals.

Asylum Policies
The bill will eliminate the one-year filing deadline for asylum claims and provide funding to reduce the backlog of asylum applications. Visa caps for the U visas will increase from 10,000 to 30,000, including increased protections for U visas as well as for T visas, VAWA applicants and foreign nationals assisting U.S. troops. President Biden plans to terminate several asylum policies implemented by the previous administration instituted along the border. One of the first Executive Orders signed by President Biden on January 20, 2021 suspended new enrollments to the Migrant Protection Protocols, or the “Remain in Mexico” policy, which required 70,000 migrants to wait in Mexico for their U.S. immigration court hearings.

Preserving DACA
President Biden will order his cabinet to preserve the Deferred Action for Childhood Arrivals program (DACA). The program was first introduced by the Obama administration to prevent the deportation of individuals brought into the United States as children, or Dreamers. In 2017, the Trump administration ordered an end to DACA; however, this action was blocked by the Supreme Court due to failure to meet rule-making guidelines. DACA recipients and other related regulations “permit eligible individuals who pass a background check to request temporary relief from removal and to apply for temporary work permits.” In this executive order, Biden calls onto Congress to adopt legislation granting the approximate 700,000 DACA recipients’ permanent legal status and a path to citizenship to Dreamers.

Ending Travel Ban
The “Travel Ban” was rescinded on January 23, 2021; the “Travel Ban,” also known as the “Muslim Ban,” was introduced in January 2017 to restrict the travel and immigration of foreign nationals to the United States from countries including Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. Eritrea, Nigeria, Myanmar, Kyrgyzstan and Tanzania were later added in 2020. Since eliminating the ban, President Biden has instructed the State Department to reopen visa applications for nationals of these countries.

Limiting ICE and deportations
President Biden is reversing one of the first executive orders issued by the Trump administration: deporting all 11 million people that are illegally in the U.S. The Biden administration is planning to shift the Department of Homeland Security’s focus to national security and safety threats rather than focusing on restricting interior immigration enforcement. DHS will conduct a review of immigration enforcement policies and practices which include: “policies for prioritizing the use of enforcement personnel, detention space, and removal assets; policies governing the exercise of prosecutorial discretion; policies governing detention; and policies regarding interaction with state and local law enforcement.” In the interim and completion of the review, the priorities of DHS will be national security, border security, and public safety. The definitions of each priority are as follows:

  1. National Security: Individuals who have engaged in or are suspected of terrorism or espionage, or whose apprehension, arrest and/or custody is otherwise necessary to protect the national security of the United States.
  2. Border Security: Individuals apprehended at the border or ports of entry while attempting to unlawfully enter the United States on or after November 1, 2020, or who were not physically present in the United States before November 1, 2020.
  3. Public Safety: Individuals incarcerated within federal, state, and local prisons and jails released on or after the issuance of this memorandum who have been convicted of an “aggravated felony,” as that term is defined in section 101(a) (43) of the Immigration and Nationality Act at the time of conviction, and are determined to pose a threat to public safety.1

The Biden administration has implemented a 100-day moratorium on deportations effective January 22, 2021. This applies to all noncitizens in the U.S. except:

  1. Individuals who are suspected of terrorism or espionage, or otherwise poses a danger to national security; or
  2. Individuals not physically present in the U.S. before November 1, 2020; or
  3. Those who have voluntarily agreed to waive any rights to remain in the U.S. They must be completely aware of the consequences of doing so, as well as have meaningful opportunity to access counsel prior to signing the waiver; or
  4. The removal of individuals required by law determined by the Acting Director of ICE and consulted with the General Counsel.

Written instructions on further implementation of the removal moratorium with additional information will be issued no later than February 1, 2021. This includes individualized review and consideration of appropriate disposition to those ordered a removal for 90 days or more to the extent necessary to exercise the moratorium. Additionally, the process provides assessments of alternatives to removal such as “staying or reopening cases, alternative forms of detention, custodial detention, whether to grant temporary deferred action, or other appropriate action.”


Update: The Southern District of Texas issued a Temporary Restraining Order to enjoin the government from executing the 100-day moratorium on the removal of individuals already subject to a final Order of Removal. The government is enjoined from executing this pause for 14 days. (State of Texas v. USA, et al., 1/26/21)


The TRO does not impact the enforcement priorities set forth in DHS's January 20, 2021, memo.


Halt building border wall
The Biden Administration is immediately ending the national emergency declared by former President Trump in 2018. In addition, the new administration is halting construction of the border wall to review contracts and plans to redirect the earmarked funds. Trump’s executive order funneled billions of dollars from the Defense Department that were supposed to pay for military construction projects to instead pay for the construction of the border wall as well as counter-narcotic efforts. Arguments concerning the legality of Trump’s efforts to divert these funds will take place in the Supreme Court on February 22, 2021.


Dissolving the “Public Charge” rule
Biden has vowed to use executive authority to terminate the “public charge” rule implemented by the Trump administration in 2019 to discriminate against lower-income immigrants applying for legal status.

Counting non-U.S. citizens in the U.S. Census
President Biden will nullify the Trump administration’s attempts to exclude counting noncitizens from the U.S. census from 2019. According to Susan Rice, the former administration’s approach to the census “violated the Constitution and Census Act” and does not accurately represent the U.S. demographic. This will redirect the allocation of federal funds to be fairly distributed and federal resources be used efficiently. The new administration is expected to monitor the Census Bureau to ensure that they have enough time to complete an accurate count for each state and to ensure the apportionment of the $1.5 trillion federal spending is “fair and accurate.”

General Notice to Appear (NTA) policy published by the USCIS on November 7, 2011
The Biden Administration has rescinded the general NTA policy published by USCIS on June 28, 2018. This will be replaced with the Policy Memorandum (PM) published on November 7, 2011. It will not affect cases concerning national security. According to the PM, “[g]uidance from the Fraud Detection and National Security Directorate (FDNS) will continue to govern the definition of these cases and the procedures for resolution and NTA issuance.” NTAs will be issued by the USCIS under the following circumstances:

  1. Termination of Conditional Permanent Resident Status and Denials of Form I-751, Petition to Remove the Conditions of Residence (8 CFR 216.3, 216.4, 216.5)
  2. Denials of Form I-829, Petition by Entrepreneur to Remove Conditions (8 CFR 216.6)
  3. Termination of refugee status by the District Director (8 C.F.R. 207.9)
  4. Denials of NACARA 202 and HRIFA adjustments
    1. NACARA 202 adjustment denials (8 CFR 245.13(m));
    2. HRIFA adjustment denials (8 CFR 245.15(r)(2)(i)).
  5. Asylum, NACARA 203, and Credible Fear cases:
    1. Asylum referrals (8 CFR 208.14(c)(1));
    2. Termination of asylum or termination of withholding of removal or deportation (8 CFR 208.24(e));
    3. Positive credible fear findings (8 CFR 208.30(f));
    4. NACARA 203 cases where suspension of deportation or cancellation of removal is not granted, and the applicant does not have asylum status, or lawful immigrant or non-immigrant status (8 CFR 240.70(d)).

This does not apply to NTA or notification procedures and should be processed under existing protocols for Temporary Protected Status cases. In addition, Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, “processed under the Violence Against Women Act (VAWA) should continue to be processed under existing protocols.” If the Form I-485 of a VAWA applicant is denied, the terms of NTA issuance of the memorandum are applicable.


NTAs will also be issued to cases with a Statement of Findings (SOF) substantiating fraud, and criminal cases (both egregious and non-egregious public safety cases) will be referred to ICE for a decision on NTA Issuance. Other applicable cases include Form N-400, Application for Naturalization, requests to renew adjustment applications or certain cases of denied N-400s, and asylum applicants issued an NTA may request NTA issuance for family members not included on the asylum application as dependents for family unification purposes; both may be submitted in writing.


Exceptions to the NTA guidance require approval from Regional or Center Directors, along with the consultation of ICE before issuing an NTA.


Resources:

1Department of Homeland Security Memorandum “Review of and Interim Revision to Civil Immigration Enforcement and Removal Policies and Priorities”

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Sheila Starkey Hahn

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Sheila Starkey Hahn has devoted her entire legal career to the practice of immigration law. With offices in up-state New York, Memphis and Washington DC, Ms. Starkey Hahn focuses her practice on employment-based immigration. She assists established c…

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