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Immigration under President-Elect Biden

By January 11, 2021No Comments

By Shriom Arza

As the Trump administration leaves office, we begin a new chapter in American history. With the election of Joseph R. Biden, a Democrat will take hold of the White House after 4 years under Republican rule. This means an entirely new ideology will take hold, which will affect many important political issues, including the economy, foreign affairs and public safety. One of the most important, however, is immigration. Biden’s future immigration policies will affect our present reality, and possibly even 20 years into the future. Based on Biden’s track record in politics, as well as statements he has made over the past year or so, we can predict some of the decisions he plans to make as the President. Now that the Democratic party has essentially taken control of both the House and the Senate, passing democratic policies should be easier and take less time.

  • Legal Immigration

During the Trump Administration, the amount of legal immigration has significantly decreased. By the year 2021, Donald Trump will have reduced legal immigration by up to 49% since becoming President, without any change in U.S. immigration law having taken place, according to a National Foundation for American Policy (NFAP) analysis. Immigration advocates have maintained that reducing legal immigration harms refugees, employers and Americans who want to live with their spouses, parents or children. Not only does it affect these groups of people, it also affects American businesses and their workforce. “Average annual labor force growth, a key component of the nation’s economic growth, will be approximately 59% lower as a result of the administration’s immigration policies, if the policies continue,” according to the NFAP analysis.

  • Executive Orders, Proclamations and Regulations

Throughout the entire Trump administration Donald Trump has passed numerous executive orders, and many of the most notorious were related to immigration. One such executive ordere would be the ”Muslim ban,” which was an orderfrom January 27th, 2017 to March 6th, 2017. The order lowered the number of refugees admitted, but most significantly banned people from traveling to and from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen, which are primarily Muslim inhabited countries. The incoming Biden administration will likely try to reverse all of Trump executive orders and proclamations on immigration. During Trump’s presidency, his immigration executive actions faced a lot of challenges in the courts, and Biden’s administration is likely to face the same problem. That being said, President-Elect Biden could get rid of many of Trump’s orders that are still being litigated by simply directing the relevant agencies to stop fighting those current legal cases,  

  • H-4 Employment Authorization Documents (EAD) and Per-Country Limits

The Trump administration proposed a rule on the regulatory agenda to rescind an existing regulation that allows many spouses of H-1B visa holders to work – called H-4 EAD. This would make it harder for couples where one person has the H-1B visa to live comfortably because there would only be one source of income. The Biden administration could work on a solution for processing H-4 EADs. In a legal challenge, the plaintiffs (the legal challenger) argued that H-1B spouses cannot renew their H-4 employment authorization documents because USCIS added an unnecessary biometrics requirement and also adopted a broad interpretation of government regulations by prohibiting automatic extensions of the H-4 work authorization. There has also been a limit on how many immigrants from a specific country could come to the United States under employment-based visas in a given year. President-Elect Biden’s immigration policy plan speaks of eliminating the per-country limit for employment-based immigrants. Due to per-country limits, an employment-based green card applicant from a country like Sri Lanka or India may have to wait years or even decades to gain permanent residence in the United States.

  • Deferred Action for Childhood Arrivals (DACA) and “Dreamers” 

The Trump administration has tried its hardest to eliminate the DACA program, which has provided a temporary legal status (and work authorization) for immigrants who were brought to the United States as children, and would otherwise not qualify for other forms of immigration relief, but with the Biden administration there will very likely be a complete reversal on how the White House thinks about this program. The Biden administration will need to decide if keeping the current program as it exists is the best legal approach, or if a different administrative approach would be necessary to protect this program from legal challenges from conservatives. The President- Elect has already stated that finding a more permanent solution for these individuals will be a priority, However, even though the Democrats will control the Senate for likely at least the next 2 years, there will need to be some compromise with conservatives on the scope of any legislative solution, to actually achieve any permanent solution via passed legislation. However, with President-Elect Biden in the White House it is safe to assume that DACA is here to stay for at least the next 4 years, as long as there are no successful legal challenges.

  • High-Skilled Immigration

The Trump administration has placed numerous restrictions on H1-B visas that has and will continue to impact highly-skilled immigrants and international students.  In addition to academic research that shows imposing H-1B restrictions actually pushes more jobs outside the United States, the country’s future can be affected in other ways: 75% – 30 out of 40 – of the finalists of the 2016 Intel Science Talent Search had parents who worked in America on H-1B visas. Not only does this affect immigrants who would like to work in America, but also their children (many of whom end up being born in the United States) who go on to join the American workforce. In October 2020, the Trump administration issued three regulations that would profoundly change and restrict H-1B visas, the Department of Labor’s rule that inflates salaries for H-1B visa holders and employment-based immigrants. The Department of Homeland Security’s (DHS) H-1B rule that changed the definition of a specialty occupation and seeked to codify restrictions against companies whose H-1B employees conduct work at customer locations. A rule to eliminate the H-1B lottery and replace it with a highest-to-lowest salary system would likely shut out international students and younger information technology (IT) professionals. The immigration of high skilled workers into the US will be a significant factor in President-Elect Biden’s immigration policy with the nation wanting to recover after COVID-19. Studies have shown that these policies will also help boost America’s economy.

  • International students

The Trump administration passed The Department of Labor and DHS H-1B rules also eliminated the H-1B lottery. This makes it harder for international students to work in America after completing their studies in their native countries. The Trump administration generated enough uncertainty as to whether students can complete their studying in the U.S., which many have felt was a good way to ensure they did not come to the United States in the first place. Research has found the proposed student rule was based on flawed DHS reports on student-visaoverstay rates. The Biden administration has promised to find a solution to thisto ensure the safety of the American workforce and keep people coming to this country, so the nation can become better and more prosperous.

  • Refugee, Asylum, and TPS

Under the Trump administration, refugees coming to America were at record lows and in the eyes of many, America was no longer seen as a leader in refugee protection. Many say that the Biden administration should consider solutions that allow refugees to be interviewed outside the United States, including in their home countries, and develop solutions to enable individuals to work legally in the United States at jobs that do not require a high school degree, similar to, or even including, H-2B visas. The first part of this plan is very problematic, because forcing refugees to stay or wait in their own or adjacent countries to be interviewed so they can enter the US negates the entire purpose of the refugee/asylum system, which is to give people sanctuary from the awful conditions/lives they are fleeing from in the first place. For example, a refugee fleeing Honduras is not likely to be much safer having to wait in El Salvador for an extended period of time while their application is processed. This is why the Biden administration should work to enact asylum/refugee polices that actively and passively encourage and ensure that refugees and asylum seekers are safe while they are waiting to find out if their asylum/refugee status has been approved or not.  President-Elect Biden’s has promised that “He will set the annual global refugee admissions cap to 125,000, and seek to raise it over time commensurate with our responsibility, our values, and the unprecedented global need.” The proposed policy also states that regarding Temporary Protected Status (TPS), which, similarly to DACA gives individuals from certain countries where severe hardship and strife has taken place a certain type of temporary immigration status and ability to work, he will “[o]rder an immediate review of Temporary Protected Status (TPS) for vulnerable populations who cannot find safety in their countries ripped apart by violence or disaster.” President-Elect Biden spoke about TPS for Venezuelans during the campaign, but hundreds of thousands of individuals from other countries, mainly from Central America, have lived in the United States for years and saw their TPS status ended by the Trump administration.

The Biden administration can bring some big changes to immigration that this country definitely needs. While some may believe that immigration does not affect them personally, it actually affects everyone in this country of ours, and mostly in a positive way. The United States needs to remain a beacon for hope for people that need help. Many feel that beacon has been dimmer under the Trump administration, but many have a real hope that the Biden administration will not only make immigration a priority, but will restore the promise of the American Dream that has made this nation the melting pot that it is.