By: Richard Hanus
Even before President Biden took offi ce, the nonstop fl ow of news relating to immigration law began. How will things be different with President Biden when it comes to immigration law and policy, especially after 4 years of the Trump administration’s harsh tone and policies? In the past 10 days, the Biden administration has announced dozens of important immigration initiatives, some being Executive Orders taking effect immediately and without Congressional approval and others like proposed legislation, requiring Congressional approval and having no immediate impact. Below are the 6 most far reaching of these orders and proposals.
1. Proposal – The biggy is the Citizenship Act of 2021 and its most powerful provisions provide a path to legalization for millions of our nation’s undocumented population. Most notably it features a 5 year to path to lawful resident (“Green Card”) status and with the option to apply for U.S. citizenship as soon as 3 years thereafter. Applicants, with some exceptions, will be required to demonstrate they have been present in the U.S. since prior to January 1, 2021, pay their taxes and pass background checks. Individuals who have already been granted Deferred Action for Childhood Arrivals (DACA) protection or Temporary Protected Status (TPS ) will be afforded an immediate path to lawful resident status. Commentary: First and foremost, this is just a plan. We are only at the proposal stage at this time, and for now there is no law or system allowing anyone to apply for anything. Let me repeat, there is nothing to apply for at this time, and until a law is actually passed and signed into law, prospective applicants should not enter into arrangements or pay legal fees for the preparation or fi ling of documents. i.e. be on the lookout for unscrupulous lawyers and document preparers claiming an inside track to a benefi t, that for now does not even exist.
Further, the provisions of any fi nal program entered into law may be very different from what has been proposed, so it’s best that all prospective applicants be extraordinarily cautious in deciding if and how to proceed. Again, we need an actual program to be passed into law, so for now all one can do is watch carefully and wait patiently.
2. Immediate impact via Executive Action – Foreign nationals brought to the U.S. as children will continue to be eligible to apply for Deferred Action for Childhood Arrivals protection. Since fi rst being implemented during the Obama Administration, approved DACA applicants received extendable employment authorization documents for 2 year periods and were protected from being removed from the U.S.
3. Immediate impact via Executive Action – There will be new prioritization for immigration enforcement and removal proceedings. For the past 4 years, everyone and anyone who was not in documented status was fair game for being placed in removal proceedings, or removed from the U.S., no matter their family ties, otherwise clean criminal record or other equities. Now, under the Biden administration, our nation will return back to placing emphasis on enforcement against non-U.S. citizens with criminal records or who present dangers for our national security. Most notably, the Biden Administration announced a 100 day pause on executing outstanding removal orders against foreign nationals, other than those who fall within the criminal or national security risk categories.
4. Proposal – The Citizenship Act of 2021 features provisions to streamline the employment based green card process and cut down on bureaucratic red tape and wait times for companies and their foreign national employees seeking to facilitate resident status through a job offer. Among the key issues being targeted are the extended visa backlogs for workers from certain high demand countries and who are subject to signifi cantly longer waits for green card issuance.
5. Proposal – The Citizenship Act of 2021 features improved protections for asylum seekers, U.S. based victims of crimes and domestic abuse, including traffi cking victims.
6. Immediate Impact via Executive Action – The “Muslim Ban” will be eliminated. The “Muslim Ban” was imposed by the Trump Administration and placed blanket visa processing restrictions for individuals on an expanded list of countries including Venezuela, North Korea and adding mainly Muslim populated countries, including Iran, Libya, Somalia, Syria, Yemen, Myanmar, Eritrea, Kyrgyzstan, Nigeria, Sudan, and Tanzania. Importantly though, the lifting of the “Muslim Ban” will not impact the current pandemic related travel ban now in effect, a measure which has shut down visa processing for most categories of applicants in need of a temporary or immigrant visa.