Blog Post

How Immigration Could Change Under Biden

January 18, 2021

No matter the specific form it takes, we can expect immigration policy to be radically different under the Biden administration than it was under Trump. Under the Trump administration, the US saw 738,000 fewer immigrants. And this isn’t a mere side effect of the COVID-19 pandemic — permanent immigration had declined by 24 percent even before the pandemic became a major force in the US.

A less-than-speedy reversal

Biden has promised to reverse the Trump administration’s immigration policies, though it’s unlikely this reversal will be a swift one. And this is why:

  1. President Trump issued some 400 executive orders on immigration, a volume that can’t be quickly worked through.
  2. Now that Democrats control the Senate, these rollbacks may take the form of either executive orders or as part of broader immigration legislation, but both processes will be slow as executive orders are easy targets for litigation and legislation must be debated and negotiated, especially since Democrats don’t possess a filibuster-proof 60-seat majority.
  3. Biden himself has pledged to take immigration rollbacks slowly so as to avoid seeing “2 million people on our border.”

That being said, the administration has been clear on some priorities. For one, any high-priority items on the Biden administration’s list will likely be checked off prior to the 2022 election, when Democrats could lose the Senate or the House. These include passing coronavirus relief, environmental reform and, of course, immigration — so while the pace may be slow, it won’t be glacial.

Relief for asylum seekers, refugees and TPS

Within the first six months of the new administration, Biden has promised to end the Migrant Protection Protocols (MPP), a program requiring asylum seekers awaiting US immigration hearings to stay in Mexico. This is a slight shift from an earlier promise to end the MPP on day one of the administration, with President Biden stating that “The timeline to do it is so that we, in fact, make it better, not worse.”

Given that the Supreme Court will hear a case involving the MPP in 2021, immigration advocates are hopeful that the administration will act swiftly to terminate the program before then.

We also saw a number of attempts under the Trump administration to terminate Temporary Protected Status (TPS) for several countries, notably El Salvador. As of this writing, there is on-going litigation preventing that termination, specifically Ramos, et al. v. Nielsen, et al. and Bhattarai v. Nielsen, No. 19-cv-731 (N.D. Cal). It’s likely that the Biden administration will roll back those attempted terminations, however, and has even floated the idea of expanding TPS to Honduras and Guatemala after the devastation caused to those countries by 2020’s hurricane season.

Working through green card backlog; restrictions to H-1Bs

In December of 2020, the Senate passed S.386, or the Fairness for High-Skilled Immigrants Act of 2020. The bill still needs to be reconciled with its House companion, H.R. 1044, but once the final bill passes, the odds are good that President Biden will sign it.

There are a variety of changes the bill implements, but most significant is the elimination of the country cap for green cards. Currently, only 7 percent of applicants from a given country can be given a green card per year, which has resulted in a decades-long backlog of green card applications.

The bill, however, does impose several restrictions on H-1B visas, such as the so-called 50-50 rule. Under the current bill, employers with 50 or more employees with 50 percent of their workforce consisting of H-1B holders won’t be allowed to sponsor additional foreign nationals. It also imposes additional recruitment and posting requirements for sponsors, among other restrictions. But the House will likely respond negatively to these restrictions and may try to remove them.

Additional restrictions to H-1B visas have been common under the Trump administration, notably a proposed rule to create a wage-based selection process for H-1B visas. This would significantly limit the number of H-1B visas that are awarded each year to only those foreign nationals offered the highest salaries in the US. Given the likely challenges to this rule change by the business community and its lack of support in the Biden administration, the rule isn’t likely to stand.

Despite challenges, DACA’s here to stay

Having survived multiple legal challenges under the Trump administration, the Deferred Action for Childhood Arrivals (DACA) program is currently awaiting a ruling from U.S. District Judge Andrew Hanen in Texas v. United States on the legality of the program. Judge Hanen previously rejected Texas’s 2018 request to enjoin the program in Texas v. Nielsen, but he has stated that he believes DACA to be unconstitutional as enacted by Obama.

However, the outcome of this case may not ultimately matter much to Dreamers. So long as its basis remains an executive memorandum, DACA will always be susceptible to legal challenge. Texas and the other states involved in the case argue that DACA should have been implemented through legislation rather than a memorandum; the Mexican American Legal Defense and Educational Fund (MALDEF) — representing the DACA recipients in the case — also want DACA to be formalized through legislation; and the Democrats now control the Presidency, the House and the Senate.

Even if Texas’s suit prevails, we can expect DACA or an equivalent program to be legislated in the Senate. Democrats don’t hold a filibuster-proof 60-seat majority, so any bill relating to a hot-button issue like immigration that passes the Senate is likely to see significant compromises. But given the fact that the case before Judge Hanen focuses solely on whether DACA was legally created and not whether the program itself is lawful, the Biden administration hsa avenues to either strengthen DACA’s legal standing as it is now or work to create some sort of equivalent program. For instance, Judge Hanen has indicated that DACA could be proposed again but put through the formal notice-and-comment process, where proposed rules are published in the Federal Register and made available to comment by the public. The Obama administration opted to skip this process.

A shift in tenor

Perhaps the most impactful change, but also the most difficult to quantify, is a general change in attitude towards immigration. With President Biden’s cabinet officials taking over key agencies, we can expect at least a less-overtly hostile approach to immigration. For instance, some observers noticed that it became commonplace under the Trump administration to reject forms with blank, yet inapplicable, fields, such as listing the “current location” of deceased relatives. We may also see fewer Requests for Evidence (RFEs) notices, especially when adequate documentation has already been submitted for a given applicant. Though President Biden has been clear that his administration won’t approach immigration policy in a completely permissive fashion, it will still be miles away from the Trump administration’s approach.

Whatever form immigration policy takes under Biden, however, the Exigent team is ready to help businesses and law firms gain efficiency, stay secure and mitigate risk when it comes to assisting foreign nationals in their immigration process. Get in touch with us today to discuss your organization’s immigration needs.