Immigration Policy: First Steps Down A New Path

Among President Biden’s promises was to restore U.S. immigration policy to reflect our values as a nation of immigrants and longstanding commitment to protect and welcome the world’s most vulnerable. The first moves by the Biden administration to overturn four years of anti-immigrant policies and strengthen our immigration system were issued on day one and included executive orders and an immigration reform bill.

The six executive orders issued by President Biden:

Additionally, the Department of Homeland Security announced a 100-day deportation moratorium and interim enforcement priorities and a suspension of new enrollments in the Migrant Protection Protocols (MPP).

The bill, titled the U.S. Citizenship Act of 2021, is sponsored by Senator Bob Menendez (D-NJ) and proposes:

Establishing new legal status and pathway to citizenship for 11 million undocumented immigrants

Creating a pathway to citizenship for DACA recipients, current TPS holders, and farmworkers

Reuniting immigrant families and strengthening family-based immigration

Strengthening the economy and expanding access to high skilled workers

Restoring border security policies and the U.S. commitment to human rights

Addressing the immigration court backlog, mandating access to counsel, and implementing more humane alternatives to detention

Removing the term ‘alien’ in all immigration code and replacing it with ‘non-citizen’

More information on Biden’s executive orders, the U.S. Citizenship Act, and announcements issued by DHS can be found below.

Executive Orders:

Rescind the Muslim and African bans

This EO rescinds the Trump bans that restricted travel from majority Muslim and African countries, and requires the Department of State to provide a report within 45 days ensuring a process for expeditious adjudication of visas for applicants who were pending a waiver, and ensure that all those whose visa applications were denied on the basis of the bans may have their applications reconsidered without prejudice. Significantly, this EO also calls for a full review of and recommendations to improve screening and vetting procedures for people seeking immigrant and nonimmigrant entry, a review of the accuracy of foreign government information-sharing practices, and the use of social media identifiers.

Rescind the Trump administration’s executive order on immigration enforcement

This EO rescinds the sweeping EO on interior enforcement that Trump issued his first week in office, and states the administration’s intent to “reset the policies and practices for enforcing civil immigration laws to align enforcement” with a set of values and priorities articulated as including protecting national and border security, addressing humanitarian challenges at the southern border, and ensuring public health and safety.

Restore a proper census count and ensure all individuals regardless of legal status are included

Preserve and fortify DACA

This EO instructs the DHS Secretary to take all actions consistent with law to “preserve and fortify” DACA.

Reinstate Deferred Enforced Departure for Liberians

This EO reinstates Deferred Enforced Departure for Liberians, extending to June 30, 2022 protections and employment authorization for those who were under a DED grant as of January 10, 2021.

Halt the border wall construction

This EO terminates the national emergency declaration that allowed the Trump administration to grab money from other departments to fund the wall; pauses wall construction and the obligation of funds for construction projects; and directs all relevant agencies to develop a plan for the redirection of the $1+ billion funds already appropriated for 2021 for border wall construction.

DHS announcements:

The Department of Homeland Security (DHS) announced a 100-day deportation moratorium and interim enforcement priorities

The announcement includes several exceptions to the moratorium:

People for whom there is a written finding by ICE director that the person has engaged in or is suspected of terrorism or espionage or poses danger to national security
Individuals who arrived in the U.S. on or after 11/1/20
People who opt out through a voluntary waiver of rights to remain in U.S
People who acting ICE Director “following consultation with the General Counsel, makes an individualized determination that removal is required by law.”

The memo indicates that there will be a required department-wide review of all enforcement practices to be completed within 100 days along with recommendations regarding enforcement, prosecutorial discretion, detention, and interaction with state and local law enforcement.

There will also be an interim set of new civil enforcement priorities effective February 1st through the period of the agency review, directing the following categories for prioritization:

People engaged in or suspected of terrorism or espionage or who pose a national security risk
People apprehended at a port of entry “while attempting to unlawfully enter the United States” on or after 11/1/20, or who weren’t present in the U.S. before 11/1/20
People incarcerated in federal, state, and local prisons and jails released on or after issuance of this memo who have been convicted of an INA 101(a)(43) aggravated felony offense “and are determined to pose a threat to public safety”

The memo instructs the Acting ICE director to issue operational guidance including a process for “individualized review and consideration of the appropriate disposition for individuals who have been ordered removed for 90 days or more, to the extent necessary to implement this pause. The process shall provide for assessments of alternatives to removal including, but not limited to, staying or reopening cases, alternative forms of detention, custodial detention, whether to grant temporary deferred action, or other appropriate action.”Includes an appendix of Trump-era memos that are rescinded in accordance, including the NTA memo.

DHS announced a suspension of new enrollments in the Migrant Protection Protocols (MPP)

While new enrollments into MPP will cease, there were more than 60,000 immigrants who were forced to wait in Mexico because of the policy. The Biden administration has not indicated a date where those who were enrolled in MPP will be admitted into the United States.

The U.S. Citizenship Act of 2021:

Establishes a new legal status, Lawful Prospective Immigrant status, for nearly 11 undocumented immigrants.

Undocumented immigrants who were physically present in the United States on January 1, 2021, and meet certain requirements (pass a criminal background check, pass a national security check, and pay taxes) are eligible to apply for a six-year Lawful Prospective Immigrant (LPI) status. This would allow an estimated 11 million individuals to gain a pathway to citizenship. LPI status will also be available to both the children and spouses of the principal applicants.

Although LPI status is renewable every six years, after five years an individual may apply for Lawful Permanent Resident (LPR or “green card holder”) status. After three years, all immigrants with an LPR status can apply for citizenship.

Creates a pathway to citizenship for DACA recipients, current TPS holders, and farmworkers

DACA recipients, farmworkers, and current TPS holders who meet specific criteria are immediately eligible for LPR status. Like all other green card holders, they will also be eligible to apply for citizenship after three years.

Strengthen family-based immigration and reunite immigrant families

Certain provisions are included in the bill to help reunite LPI status holders with spouses and children if they are abroad. The bill also includes an expedited process to reunite families for immigrants with LPR status because spouses and children will be considered – under the bill – as immediate relatives.

The bill includes a V-Visa provision that will allow immigrants with approved family sponsorship petitions to reunite with their families in a temporary status while they wait for green cards to become available.

To help achieve the goal of strengthening family-based immigration the bill proposes:

Clearing the backlogs for family visas
Recapturing past unused visas
Increasing the per-country visa cap
Eliminate the 3 year and 10-year bars
Eliminate discrimination towards LGBTQ families

Strengthening the economy and expanding access to high skilled workers

The bill includes provisions from a previous bill, the Power Act, also introduced by Sen. Menendez. Those provisions would protect immigrant workers from retaliation for exercising their rights.

According to Sen. Menendez, the bill would also provide U.S companies to gain greater access to high skilled workers by clearing visa backlogs, ending country caps, capturing unused visas, and enabling STEM graduates to remain in the U.S. following graduation.

Restores border security policies and commitment to human rights

Under the bill, new technology would be implemented at the border to help combat transnational crime, detect narcotics and other contraband, and screen trade and travel.

Moreover, rather than ramping up border security, the bill would point the focus towards addressing the root causes of migration, specifically in Central America. The bill would include provisions from the Northern Triangle Act that are aimed at improving democratic governance and rule of law, fighting corruption, alleviating poverty, and cracking down on transnational crime, human rights abuses, and gender-based violence. Additionally, the bill would establish refugee processing locations in Central America.

Address the immigration court backlog, mandate access to counsel, and implement more human alternative to detention

The bill would propose increasing the number of immigration judges and personnel to reduce the backlog.

Thank you to the National Immigrant Justice Center and the Immigration Hub for their summaries on President Biden’s Executive Orders and DHS announcements.