A common feature of new incoming administrations, particularly those that are different from the previous incumbent administration, is to immediately do away with priorities and ambitions of a prior president. The Trump Administration’s desire to limit lawful (and unlawful) immigration is well-documented and was implemented through a variety of executive actions and regulatory initiatives through various governmental agencies, including the Departments of Homeland Security, Labor and State. The Biden Administration has moved swiftly to reverse many Trump initiatives, which has had wide-ranging on a variety of immigration areas, including DACA, H-1B filings and ICE enforcements.
A top priority of the Biden Administration has been the protection of DACA recipients, commonly known as “Dreamers”. Biden has not only reinstituted the ability of new applicants to apply for DACA, but has also opened up the ability of Dreamers to apply for Advanced Parole travel documents, which not only permits Dreamers to depart the United States for family, business or educational reasons, but also provides them to return to the United States without issue. This return has proven to be extraordinarily beneficial, as their return constitutes a “parole” into the United States. Why is this important? Thousands of Dreamers have no evidence of a lawful means of entering the United States at all, many brought unlawfully across the US/Mexico border as youngsters, which usually means that they are unable to apply for permanent residency status in the United States. By getting paroled back in to the US, DACA recipients may be able to apply for residency status in the United States, cutting down on sometimes year-long consular wait times and significantly reducing the expense of the green card process.
The Biden Administration has also moved quickly to eliminate new rules issued in the waning days of the Trump Administration focusing on H-1B filings. Prior to Mr. Biden’s inauguration, the Department of Homeland Security issued a notification indicating that new CAP-subject H-1B filings would be prioritized based upon a particular job’s wage level with most senior Level IV applicants garnering a more favorable placement in the lottery compared to newer Level I workers. Level IV workers are required to be paid a higher salary under current regulatory framework and as a result, the Trump Administration’s regulatory scheme would have virtually eliminated newer workers from being eligible for H-1B visas. While this may seem reasonable at first blush, the rule would have crushed the chances of recent college graduates from getting selected in the H-1B CAP lottery, as Level I physicians, software engineers, teachers and chemists would have been deprioritized when compared to higher paid individuals in these same jobs. As a result, the US would be educating, but exporting much of the foreign student talent pool to compete against us in the global economy. While the United States still does this given the caps on the H-1B lottery system as a whole, targeting younger workers was seen as folly by a host of immigration observers. The incoming Biden Administration has paused the implementation of this regulation, citing the lack of public input and the need for the Department of Homeland Security to adequately prepare the necessary software system capable of implementing such a change. The delay was met with a colletive sigh of relief from prospective H-1B applicants, employers and practitioners, given that the H-1B CAP lottery registration process will be open from March 9 – 25, 2021 and that last-minute governmental changes have often resulted in confusion and filing problems.
Mr. Biden’s most telling departure from his predecessor may be with regards to the actions of Immigration and Customs Enforcement, an agency which Mr. Trump provided wide-latitude in enforcement actions. Under Trump, ICE did not delineate between immigration violators, effectively targeting the non-violent mother of three who had overstayed her visitor visa from 1998 in the same manner as a violent criminal finishing up a long prison sentence. The Trump Administration’s focus on enforcement lead to a rise in the number of active cases before the Immigration Courts, which the Department of Justice sought to stem by surging the hire of new Immigration Judges and requiring judges to meet specific case completion metrics on an annual basis. While the strategy did have a modicum of success, it did so by largely defanging the concept of prosecutorial discretion, which is the judgement that DHS prosecutors make on a case-by-case on where to use limited resources. Under President Obama, violent criminals and multiple immigration violators were of highest priority, whereas nonviolent immigration violators or long-time unlawful residents were often given discretion and allowed to remain, with DHS leaving open the ability to prosecute their removal at any time in the future. Under President Obama, Immigration Judges similarly had options to place removal proceedings on hold while awaiting actions outside of court, a procedure known as “administrative closure”; President Trump’s DOJ largely eliminated the concept of unilateral administrative closure by an Immigration Judge, effectively forcing Judges to rule on cases despite circumstances where an individual could pursue a means of remedying his/her status outside of the court process.
Mr. Biden appears to be rolling back these Trump enforcement initiatives and returning to the priorities articulated by the Obama Administration with respect to prosecutorial discretion and administrative closure. This more immigrant-friendly approach is an about-face for ICE, an agency with the term “enforcement” in its own title and charged with the duty to implement and carry out the laws of Congress. Mr. Biden’s calculation may be centered on his bid to reform the immigration system as a whole, which has pledged to pursue during his term. The opening days of his presidency has seen a notable list of immigration-focused executive actions and all indications are that immigration reform will be Mr. Biden’s priority after the passage of his COVID-19 relief bill, to which he has also pledged prompt action.
All of this is to say that 2021 should prove to be a consequential year in the field of immigration, as Mr. Biden’s focus on the area and desire for genuine systemic reform is refreshing considering high priority he has given the issue considering the myriad of problems facing the nation. As the outgoing president often said: “we’ll see what happens.”