After Election 2020: What U.S. immigration related changes can we expect?
President Trump and Former Vice President Biden disagree on many issues, including U.S. immigration policy. The future of U.S. immigration is certainly one of the most contentious issues between the candidates. However, neither the first presidential debate nor the vice presidential debates contained any immigration-related questions. We wanted to provide a primer that summarizes what we can expect to see in the future of U.S. immigration under each candidate.
History of Trump’s actions regarding U.S. Immigration:
The Trump administration has dramatically changed the U.S. immigration landscape without having to push sweeping immigration reform through Congress. This has primarily been through technical adjustments and more than 400 executive actions on immigration, spanning everything from border and interior enforcement, to refugee resettlement and the asylum system, Deferred Action for Childhood Arrivals (DACA), the immigration courts, and vetting and visa processes.
The possible future of U.S. Immigration under a second Trump term:
In a second term, the Trump administration would likely continue its trend of executive orders and technical adjustments. He would also continue to place federal judges in positions that would uphold even the most radical of his executive orders. Trump will likely continue to target not just undocumented immigrants and asylum seekers, but legal immigrants as well.
Specially, the following changes are likely under a second Trump term:
Asylum: Trump will likely continue to narrow and eliminate asylum protections. In late 2019, the president created two pilot programs—the Prompt Asylum Claim Review (PACR) and the Humanitarian Asylum Review Process (HARP)—that fast-track asylum cases for Mexican and Central American migrants at the border. It’s likely they’ll be expanded further if Trump is reelected, even before courts decide their legality.
The administration will also likely expand upon it’s 2019 Remain in Mexico policy which forces individuals to wait in Mexico while a U.S. immigration judge decides their case. The program began as a pilot program at a single port of entry in California. Since that time, the program has already been expanded along the entire border and has affected more than 60,000 individuals.
In January 2020, the administration began sending Brazilian nationals seeking asylum to Mexico as well, signaling an expansion beyond Spanish-speaking asylum seekers. If Trump is reelected, it’s likely that the administration will further expand this program. The most likely targets of such an expansion would be individuals from India, Cameroon, the Democratic Republic of the Congo, and Eritrea.
The Wall: The Trump administration already reallocated over $10 billion in military funds to pay for construction of the wall. It is likely that Trump would expand the border wall with military funds.
Due Process: The administration will likely try to give immigration judges the ability to decide all status cases without listening to immigrants’ testimonies. This would essentially be an expansion of PACR and HARP described above. A second Trump term could give Immigration Judges the power to rule against different forms of protection, including asylum, without the foreign national having a trial.
Employed-based non-immigrant visas: Trump will likely place further limits on H-1B and L-1 visas, two of the most popular employment-based non-immigrant statuses. On June 22, 2020, Trump suspended the entry of foreign nationals on H-1B and L-1 visas until at least December 31, 2020 and he would likely expand this ban.
Furthermore, the administration would likely dramatically narrow the definition of L-1B specialized knowledge and require that employers pay appropriate wages to L-1 visa holders.
A proposed rule yet to be issued would rescind an existing regulation permitting many spouses of H-1B visa holders to work while in H-4 status. The Trump administration would also likely make it more difficult to obtain an H-1B visa by revising the definition of specialty occupation and revise the definition of employment and employer-employee relationship.
Employment-Based Green Cards: The Trump administration would likely make it more difficult for individuals waiting for employment-based green cards to remain in the United States. This could be accomplished through not allowing the extensions beyond 6 years in H-1B status and/or employer and foreign national to undergo the arduous “labor certification” process again before the foreign national can obtain a green card.
“Merit-based” System: The Trump administration has consistently used the term “merit-based” immigration when describing its plan to limit family-based immigration in favor of highly educated and skilled immigration. In fact, Trump’s advisor Jared Kushner drafted a “merit-based” immigration plan during Trump’s first term that was never introduced in Congress. It is likely that the Trump administration would try to introduce this new plan to congress and push it through in his second term.
History of Biden’s actions regarding U.S. Immigration:
Although Biden is now campaigning on a relatively pro-immigrant platform, his record related to immigration is complicated. The Obama administration, with Biden serving as Vice President, deported more than 3 million foreign nationals. Biden has supported policies that funded border militarization and deportation, while overall supporting employment-based and family-based legal immigration.
The possible future of U.S. Immigration under the Biden administration:
Presidential hopeful Joe Biden has made many promises regarding the immigration system. Specifically, Biden has promised to:
End Family Separation. Biden has promised to reverse the Trump Administration’s policies that separate parents from their children.
Expanding Asylum. Biden will likely increase access to asylum in the U.S., by removing the additional restrictions on anyone traveling through Mexico or Guatemala. The administration may be more understanding of asylum claims based on gang and domestic violence or LGBTQ persecution. Furthermore, under a Biden Administration, the U.S. Department of Justice will reinstate asylum protections for domestic violence and sexual violence survivors whose home governments cannot or will not protect them.
Biden has also promised to increase the number of asylum officers to
review the cases of recent border crossers and keep cases with positive credible-fear findings with the Asylum Division.
Ending Prolonged detention for Children. Biden has said he will focus on alternatives to detention and non-profit case management programs for children. He has promised to codify protections to safeguard children and invest in community-based case management systems, to allow immigrants to leave detention as quickly as possible.
End Public Charge Rule: Biden has promised to end Trump’s harsh “public charge rule”, which forces foreign nationals to prove they are wealthy enough to not rely on government assistance in the future. The Public Charge rule has been the subject of much litigation.
Stop building the wall. Biden will likely discontinue the use of military funds to build Trump’s border wall. Instead, he will fund “smart border enforcement efforts”, like investments in improving screening infrastructure at U.S. ports of entry.
Reinstate DACA. Biden will likely reinstate the DACA program, which has provided young people who passed a background check and application process with temporary work permits and protection from deportation. Beyond that, Biden has said he will “explore all legal options to protect their families from inhumane separation” and ensure Dreamers are eligible for federal student aid.
Rescind Trump’s “Muslim bans”: Biden will likely rescind the bans from “Muslim” countries, as Biden’s campaign states that the bans were designed by Trump to target primarily black and brown immigrants.
Path for Citizenship for recipients of Temporary Protected Status (TPS): Biden has said he will not return TPS and Deferred Enforced Departure (DED) to countries that are unsafe, but he has not been clear on what countries he considers unsafe. Biden has further stated he will provide TPS/DED holders who have been in the country for an extended period of time and built lives in the U.S. a path to citizenship, but this would need to be accomplished through legislative immigration reform.
Scale back I.C.E. enforcement. Biden will likely scale back the targeting of individuals who have never been convicted of a serious criminal offense, will scale back workplace raids and protect sensitive locations (i.e. hospital, schools, churches) from immigration enforcement actions.
Supporting a new location-specific visa category for further economic development: Biden has said he will support a program to allow any county or municipal executive of a large or midsize county or city to petition for additional immigrant visas to support the region’s economic development strategy, subject to some kind of labor certification process.
Increasing employment-based visas as needed: Biden will likely push to increase the number of visas offered for permanent, employment-based petitions. Biden has said he will work with Congress to increase the number of visas awarded for permanent, employment-based immigration while also promoting mechanisms to temporarily reduce the number of visas during times of high U.S. unemployment. Significantly, Biden will likely try to remove the H-1B cap for recent graduates of PhD programs in STEM fields in the U.S.
Work with congress to create a path to legal status and/or citizenship for over 11 million individuals: Biden will likely push for legislation that creates a clear roadmap to legal status and citizenship for undocuamnted immigrants who register, are up-to-date on their taxes, and have passed a background check to check for criminal convictions.
