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What Can We Expect on Immigration from the Biden Administration?

Austin T. Fragomen, Jr.

Fragomen, Del Rey, Bernsen & Loewy, LLP

If you anticipate a radical change in policy from the Biden Administration, you won’t be disappointed. We are switching from a basically anti-immigrant predisposition to a policy perspective that favors immigration, both on humanitarian and political grounds. Further examination of action to date in light of what has been outlined for the future can provide a deeper insight into the direction of immigration policy.

The emphasis on immigration is startling as a top priority for a new administration. Historically, immigration reform has been a third rail in politics and approached gingerly later in the term of office. Former President Trump staged a broad attack on immigration solely through administrative action. I would suggest that the cover of COVID-19 allowed him to go farther than would have been possible without COVID. His anti-immigrant rhetoric empowered him to take aggressive action at the border (building a wall), with interior enforcement (apprehension & detention) and humanitarian programs (rescinding DACA, TPS), and against entry (Muslim travel bans). But COVID created the opportunity to significantly curtail legal immigration. Proclamations suspended entry for immigrants in both Employment and Family-based categories and barred H-1B, H-2B, L and J nonimmigrants from entering the country.

Of course, there were successful legal challenges to the latter program, but essentially former President Trump stopped most legal immigration, not as a public health matter, but rather to protect the US labor market during a time of high unemployment. And he did so without an analysis of the specific impact on the economy—such as corporate executives transferring internally within their organization or persons with graduate degrees in STEM fields.

Biden’s first step was to undo what he perceived as the harmful programs of the prior administration. The first action was to cancel the “Muslim” travel bans. The title, “Proclamation on Ending Discriminatory Bans on Entry to the United States” confirmed that we had new leadership and new direction. But the primary focus of the initial array of actions was directed at the border and interior enforcement, which, coupled with the legislative proposal, would create a path to citizenship for 11 million irregular migrants.

On the border, construction of the Wall was stopped. The Migrant Protection Protocols (Wait in Mexico) were suspended and more recently expanded to admit 25,000 applicants waiting in Mexico for asylum. Persons crossing the border illegally are now released and allowed to remain in the United States. Persons applying for asylum at border points are admitted selectively as well, pending a hearing. Most travel on to other points in the United States where proceedings will take place. Parenthetically, there are approximately 800,000 asylum cases pending—so the wait for a hearing will be interminable.

The President also established an interagency task force to reunite families and declared a 100 day moratorium on removal from the United States while DHS agencies review enforcement policies for illegal presence. On February 23, a Texas Federal Judge issued a nationwide injunction finding this Executive Order illegal and in violation of the Administrative Procedures Act. There are even reports that the border patrol has released migrants into the United States to prevent excessive crowding at the border in detention facilities.

President Biden has also mandated that agencies work together to further preserve and fortify DACA, which is threatened by a pending decision of a Federal District Court in Houston poised to rule on the legality of the program’s creation.

Following the Supreme Court decision finding the rescission of DACA unlawful (DHS v. Regents of the University of California, 140 S Ct. 1891(2020)), the program was opened to new applicants through an order of the Federal Court in the Eastern District of New York. (Vidal v. Wolf, 16 CV-4756, EDNY Dec 4, 2020).

The business community was disappointed that President Biden left intact the two actions most affecting their employees—the Proclamation banning entry of H-1, H-2, L and J nonimmigrants, and foreign citizens applying abroad for entry as immigrants after a long processing period and coming to the United States to join sponsoring employers or family members. On February 24, President Biden issued a Proclamation revoking the suspension of immigrants but left the nonimmigrant ban intact. Rather, there was an Executive Order on restoring faith in the legal immigration systems and strengthening integration and inclusive efforts for new Americans. Essentially the E.O. establishes a task force to review all recent regulations, policies and guidance that have limited immigration and submit a plan within 90 days. Interestingly, this E.O. maintains the public charge provision and naturalization but makes no specific mention of business immigration. The Proclamations expires at the end of March.

The cornerstone of the Biden immigration program is “The U.S. Citizenship Act of 2021,” which allows anyone illegally present in the United States on January 1, 2021 to obtain prospective immigrant status; after 5 years, permanent residency; and after an 3 additional years, to qualify for US citizenship. This time frame would be attenuated, allowing young applicants brought to the country illegally while children (“the Dreamers”) and TPS holders and qualified agricultural workers to apply for permanent residence immediately, and then for citizenship after 5 years.

The bill would also increase the number of low-skilled workers allowed to migrate each year and increase the numbers for the Diversity lottery. PhD STEM degree holders would be exempted from numerical limitations and per-country limitations for employment-based immigrants eliminated, as well as long pending cases resolved through recapturing unused visa numbers.

Interestingly, there would also be a pilot program established to allow up to 10,000 immigrants whose employment is essential to economic structures of local communities, provided they obtain a job offer certification from the Department of Labor (PERM). Another provision, which seems to be one way, would allow reduction in employment-based immigration during time of high unemployment in particular areas of labor market.

The Bill does not address the typical business concerns such as increasing numbers for both Employment-Based immigrants and H-1Bs. As we recall, there were over 275,000 applicants for 85,000 visas for FY 2021. Rather than addressing this issue, the proposal focuses on the selection criteria by authorizing the Department of Homeland Security upon consultation with the Department of Labor to determine the order of H-1B cap cases based upon salary. This provision seems close to the Trump Administration regulations selecting cap cases based on salary level, which has been postponed until the end of the year. With wide opposition to a salary-based ordering criteria, this particular provision, coupled with non-revocation of the proclamation banning entry of nonimmigrants, raises some question concerning the Biden Administration’s position with regard to employment-based migration.

Additionally, the Department of Labor regulations, which would increase prevailing wages under the PERM program as well as affect underlying Labor Condition Applications necessary for the filing of an H-1B, were published as a final rule on January 12, 2021. Although the rule is effective in 60 days from that date, the new wages will not become effective until July 1, 2021 and will be fully implemented in 3 Phases. The question is whether the Biden Administration will implement this rule or make modifications.

We note that the Democratic platform specifically mentions that employment-based immigration must be responsive to labor market needs.

It would be unlikely for the Biden bill to pass in its present form since there are no trade-offs to border security, secure identity and compulsory employment verification, which would create a level of comfort that legalization would not result in a new buildup of irregular migrants. The promise of adequate deterrents in the Immigration Reform & Control Act of 1986 were ineffective. Moreover, comprehensive immigration reform will reshape the bill considerably, particularly factoring in nonimmigrants from the high-skilled to essential workers. In fact, with partisan rancor at a high pitch, it may be impossible. A piecemeal approach may be more successful and could occur organically if the courts find DACA unlawful. Neither party would support removal of these “Dreamers” with somewhere near 1.5-2 million eligible for relief.

In closing, I point out there is a good deal of risk in taking on immigration reform as a key issue. Legislative solutions may prove elusive and the loosening of controls at the border seems to be increasing the flow drastically—some 78,000 apprehensions in January—which could cause a border crisis and ensure political ramifications as we move into 2022 midterm elections.

Austin T. Fragomen, Jr. is the Chairman of the Executive Committee at Fragomen, Del Rey, Bernsen, & Loewy, L.L.P. Austin is the co-author of Fragomen on Immigration Fundamentals: A Guide to Law and Practice (Fifth Edition), available from PLI Press, and was a speaker at PLI’s 53rd Annual Immigration and Naturalization Institute, available from PLI Programs On Demand.

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Disclaimer: The viewpoints expressed by the authors are their own and do not necessarily reflect the opinions, viewpoints and official policies of Bridgestone Americas, Inc. or Practising Law Institute.

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