As most people are aware, former Vice President Joseph Robinette Biden Jr., the Democratic Presidential candidate has been confirmed by the US Electoral College as the winner of the US presidential election and will take office on January 20, 2021. For many non-Americans that are applying for visas or living in the United States as well as US employers, US citizens with foreign family members, or immigration lawyers, this will come with some level of relief.
Over less than four years of his presidency, President Donald Trump has made over 400 changes to U.S. immigration law and may try to make several more in his Administration’s last few weeks. The vast majority of President Trump’s changes to US immigration both limited immigration to the United States and made the process much more difficult in all aspects of immigration – family-based immigration, employment-sponsored visas, and for asylum-seekers.
It is important to understand what the new president’s administration can change on their own without an act of Congress passing news legislation in addition to the policy priorities of the new administration. Hopefully, in any case, most immigration lawyers will agree that the Biden Administration will bring a level of stability to U.S. immigration policy and practice.
Biden Plans to Reverse Trump's Immigration Restrictions
The Biden Administration signaled a change from Trump’s policies on immigration throughout the presidential campaign. The Biden campaign outlined a detailed plan to “secure our values as a nation of immigrants”. As part of this plan, the President-elect has outlined the first 100 days for the administration in relation to immigration and addresses numerous necessary humanitarian issues including rolling back Trump’s asylum policy, refugees processing, protection under Temporary Protected Status (TPS), ending the “Muslim Bans”, and DACA. Even if President-elect Biden is only able to accomplish some of this agenda, it would be a significant improvement to the current state of the US immigration system.
One of the more important changes to US immigration likely to occur under the Biden Administration is that they will bring new leadership and skilled advisors into the cabinet that have a direct impact on US immigration policy and procedures. Importantly, President-Elect Biden has announced the nominee of Alejandro Mayorkas to lead the Department of Homeland Security (DHS). Mr. Mayorkas has previously served in the Obama Administration as Deputy Secretary of DHS and previously as the Director of US Citizenship and Immigration Services (USCIS). Mr. Mayorkas was himself an immigrant to the United States as a child when he fled from Cuba with his parents. Certainly, he has both professional experience and a personal understanding of the importance and opportunity of immigration. With skilled and experienced leadership in the area of US immigration, the Biden Administration will quickly bring an appreciated level of stability and predictability back to US immigration.
It is important to remember what the president can and cannot change in relation to immigration law. Much of US immigration regulation is done through an actual change in law which requires a bill to be passed through US Congress. Even when it is a mere administrative policy change oftentimes, there may be other hurdles to be able to create significant changes.
Depending on the outcome of the US Senate races in Georgia as well as the willingness of the US Congress to take on more politically hot issues regarding immigration will determine how much the Biden Administration will actually be able to accomplish. The US Congress may be unwilling to take up large scale immigration reform or possibly even more piecemeal major reform to areas of US immigration law. Furthermore, it may be that the economy and the COVID-19 situation (or the next national emergency) take the focus in the coming months and years.
Without Congress’ assistance, this leaves the Biden Administration to focus on repealing the laws enacted through Presidential Proclamations, rolling back those policies issued by the immigration agencies, and rebuilding the parts of our immigration system that have been neglected, frustrated, or faced significant staffing issues under the Trump Administration. The Biden Administration may also roll back any pending regulations that have not yet been enforced.
With numerous repeals of the Trump Administration’s executive orders, possible new regulations, and some additional executive actions, the Biden Administration will appear to make significant accomplishments in US immigration; however, in reality, any substantial changes or new laws will likely face significant headwinds. As the Trump Administration has learned firsthand, changing regulations is time consuming and contains significant protections under the Administrative Procedures Act (APA). The APA generally requires notice and comment rule-making from the public and stakeholders before a regulation may be enacted. Deviation from the APA requirements or trying to enact “emergency” rules typically leads to court challenges.
The American Immigration Lawyers Association (AILA) has published “A Vision for America As a Welcoming Nation” as their association’s recommendation for the Biden Administration in relation to US immigration. These recommendations would be a good starting point to reform the US immigration system that has been dismantled and weaponized by the Trump Administration.
Even with some of the potential setbacks or difficulties enacting new immigration regulation through US Congress, the Biden Administration should be able to wind back some of the most problematic policies of the Trump Administration and push for changes to current policy and procedures to strengthen the US’s commitment to being a nation of immigrants.
We will continue to monitor this situation closely and report on changes affecting migration and visa holders as they unfold. Join our mailing list and follow us on social media to keep up to date on the latest US immigration news. If we can provide any assistance with US immigration services please contact us or explore our services here
About The Author
Melissa Vincenty is a US attorney, an Australian migration agent and the founder and managing director of Worldwide Migration Partners. Melissa has over 20 years of experience in migration law, including practising at the world’s largest US immigration firm and more than 15 years as a Country Specialist (China and Tibet) for Amnesty International USA.
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