What We Know So Far About Immigration Changes Under President Biden

We have a new President and a new administration that looks like America looks—diverse. Some of the most highly-qualified people in the country comprise the Biden-Harris team. President Biden is shaking things up across the board, as promised.

And, U.S. immigration is no exception.

Yesterday, barely a few hours after his inauguration, he got down to business. Righting some of the most egregious wrongs of the Trump administration’s immigration policy for both employers and families.

We are relieved that Stephen Miller is out. Miller and then Attorney General Jeff Sessions were the architects of the cruel child-separation policy. Miller was also behind the policies preventing entry of H-1B workers, J-1 doctors and au pairs, and people from predominantly-Muslim countries from being able to obtain visas for employment, to join their families, or to obtain immigrant visas at U.S. consulates.

President Biden is a seasoned lawmaker who understands his limitations and the need to work with Congress on passing a long-overdue comprehensive immigration package. Yet, he does have the authority to reverse many of Trump’s executive orders and issue new ones in the meantime.

Yesterday, the White House issued a flurry of prepared-in-advance executive orders, memoranda, proclamations, and reinstatements. The Labor and Employment Group at Felhaber Larson also issued a post about orders affecting employers in general.

These affect immigration law and immigrants:

A Memorandum to the heads of regulatory agencies and departments across the entire Federal government: Regulatory Freeze Pending Review. This Memorandum instructs the heads of these agencies that they are not to issue any new rules without Presidential review.

The memo also states that many of the recent and interim Trump immigration rules and regulations will not take immediate effect, if at all. Agencies were instructed to recall rules slated for publication in the Federal Register. The freeze affects already-issued rules differently, depending upon where each rule is in the procedural process of becoming “effective.”

Finally, should any agency have frustrated the intent of this Memorandum by making any last-minute rule on January 20, 2021 before noon, that rule will still be subject to Presidential review.

Proclamation on Ending Discriminatory Bans on Entry to The United States. The Trump administration enacted bans on legal immigration from people in primarily-Muslim countries and expanded the bans to many African countries.

President Biden notes that not only are these bans inconsistent with what America stands for, they also undermine America’s security. “And when visa applicants request entry to the United States, we will apply a rigorous, individualized vetting system. But we will not turn our backs on our values with discriminatory bans on entry into the United States.”

He has revoked Executive Order 13780, and Proclamations 9645, 9723, and 9983.

Executive Order on the Revision of Civil Immigration Enforcement Policies and Priorities. By revoking Executive Order 13768 of January 25, 2017, President Biden notes the extreme complexity of the U.S. immigration system and the difficulty of enforcing our immigration laws.

This is a broad Order intended to recalibrate the focus and mission of the immigration and enforcement agencies, ensure due process, and protect American security interests.

“The policy of my Administration is to protect national and border security, address the humanitarian challenges at the southern border, and ensure public health and safety.  We must also adhere to due process of law as we safeguard the dignity and well-being of all families and communities.  My Administration will reset the policies and practices for enforcing civil immigration laws to align enforcement with these values and priorities.”

Memorandum Preserving and Fortifying Deferred Action for Childhood Arrivals (DACA). The Obama administration originally issued a “memorandum, known as the Deferred Action for Childhood Arrivals (DACA) guidance.”

DACA prevented the government from deporting “certain undocumented immigrants who were brought to the United States as children, have obeyed the law, and stayed in school or enlisted in the military.”  DACA also allowed the children to attend college and work legally.

The program “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.”

President Biden directed that “The Secretary of Homeland Security, in consultation with the Attorney General, shall take all actions he deems appropriate, consistent with applicable law, to preserve and fortify DACA.”

Memorandum Reinstating Deferred Enforced Departure for Liberians. The immigration status of Liberians in America is complex. The first wave of Liberians came as early as 1991, fleeing civil war. The civil unrest mostly ended in 2003 and the immigration protections the U.S. offered to Liberians ended in 2007. Presidents Bush and Obama extended protections from deportation to Liberians through 2018 through temporary programs including, Deferred Enforced Departure, or DED. This status prevented the government from deporting Liberian nationals and allowed them to work legally.

President Trump ended these protections but allowed for a wind-down period through March of 2020. Unexpectedly, when in 2019 Congress enacted the National Defense Authorization Act for 2020 (NDAA), it included the Liberian Refugee Immigration Fairness (LRIF) provision. Minnesota benefits greatly from this since we have one of the largest Liberian communities in the country. Many Liberians work in our healthcare systems and provide critical services caring for the elderly and COVID-19 patients.

The LRIF provision, with a few exceptions, allows Liberians who have been continuously present in the United States since November 20, 2014, as well as their spouses and children, to file for green cards and become lawful permanent residents. Liberian nationals had until December 20, 2020, to apply.

After the enactment of the LRIF provision, President Trump further extended the DED transition period through January 10, 2021, to ensure that Liberian DED beneficiaries would continue to be eligible for employment authorization during the LRIF application period.

Due to the pandemic in 2020 among other reasons, the LRIF application process at USCIS faced many problems. The government was slow to launch the program, applicants found the application process difficult, and USCIS offices made many errors, even rejecting lawfully-filed applications.

As a result, Congress enacted a 1-year extension to the application period but did not provide for continued employment authorization past January 10, 2021, the expiration of the most recent DED transition period.

This Memorandum extends protection to Liberians from deportation through June 30, 2022 and provides employment authorization through that date. While we don’t know yet how employers can document this employment authorization extension, they should review this Memorandum until USCIS releases instructions.

Bottom Line

Watch this space for more immigration news. It’s coming fast and it’s been all good news so far. If our immigration laws affect you, please call your senators and representatives and encourage them to support immigration reform.