What Biden's Upcoming Presidency Could Mean for the Future of U.S. Immigration Law and Policy
President-Elect Joe Biden has made many promises related to U.S. immigration law and policy. Changing the regulatory law through congress may be very difficult for President Biden. However, immigration is an area where presidents exercise a vast amount of discretion as President Trump has shown during his past four years in office. The Trump administration, which through more than 400 executive actions methodically dismantled and reconstructed a system based on a worldview of immigration as a security and economic threat to Americans.
Here are the main immigration promises made by President-Elect Joe Biden:
Implementing a “temporary moratorium” on deportations.
Sending Congress a road map for legalization of most of the estimated 11 million undocumented immigrants.
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.
While many in the immigration law community are eager for President Biden to make these changes, a recent report by the Migration Policy Institute indicates that Biden might have to proceed slowly. Notably, the administration will be primarily focused on the COVID-19 pandemic. Furthermore, any robust pro-immigration executive order will likely bring federal lawsuits from conservative groups. As the Supreme Court is currently comprised of six conservative justices, immigration opponents will likely feel comfortable filing lawsuits and appealing as needed. Lastly, if Republicans retain control of the Senate after the Georgia run-off in January 2020, it will be very difficult for President Biden to pass any actual laws related to immigration. We will need to wait and see what the new President-Elect will focus on first to keep his promises to immigrants to the United States.
