Newly inaugurated President Joseph R. Biden wasted no time in his first days in office, launching a sweeping array of immigration-related executive orders, regulatory actions, and legislative proposals. Below is a summary:

Executive Orders

  • “Proclamation on Ending Discriminatory Bans on Entry to the United States.” This order revokes a variety of Trump administration orders and proclamations that prevented certain individuals from the United States, such as those from primarily Muslim countries and from largely African countries, from entering the United States. The new order states that these Trump administration orders and proclamations “are a stain on our national conscience and are inconsistent with our long history of welcoming people of all faiths and no faith at all.” The order says that such orders and proclamations also “have undermined our national security,” “jeopardized our global network of alliances and partnerships” and are a “moral blight that has dulled the power of our example the world over,” in addition to separating families and “inflicting pain that will ripple for years to come.” Among other things, the order also states that when visa applicants request “entry to the United States, we will apply a rigorous, individualized vetting system.”
  • “Preserving and Fortifying Deferred Action for Childhood Arrivals (DACA).” This order refers to DACA guidance issued in 2012 under the Obama administration that “deferred the removal of certain undocumented immigrants who were brought to the United States as children, have obeyed the law, and stayed in school or enlisted in the military.” The new order directs the Secretary of Homeland Security, in consultation with the Attorney General, to “take all actions he deems appropriate, consistent with applicable law, to preserve and fortify DACA.”
  • “Reinstating Deferred Enforced Departure for Liberians.” This order defers through June 30, 2022, with some exclusions, “the removal of any Liberian national, or person without nationality who last habitually resided in Liberia, who is present in the United States and who was under a grant of DED [Deferred Enforced Departure] as of January 10, 2021.” The order also provides for employment authorization for such persons through June 30, 2022, and calls for a notice to be published in the Federal Register.
  • “Proclamation on the Termination of Emergency With Respect to the Southern Border of the United States and Redirection of Funds Diverted to Border Wall Construction.” Among other things, this order calls for a pause on construction work and funding for the southern U.S. border wall and an assessment of related legal, administrative, and contractual issues.
  • “Executive Order on the Revision of Civil Immigration Enforcement Policies and Priorities.” This order revokes a Trump administration order issued January 25, 2017 (“Enhancing Public Safety in the Interior of the United States”) and states that the Biden administration will “reset the policies and practices for enforcing civil immigration laws to align enforcement” with certain values and priorities, including protecting national and border security, addressing the humanitarian challenges at the southern border, ensuring public health and safety, and adhering to “due process of law as we safeguard the dignity and well-being of all families and communities.”

Regulatory Actions

  • A memorandum to the heads of executive departments and agencies sent by Ronald Klain, President Biden’s chief of staff, states that President Biden is calling for a regulatory freeze pending review of any new or pending rules, with possible exceptions for emergency or urgent situations. The memo states that no rule should be proposed or issued “in any manner,” including by sending a rule to the Office of the Federal Register (OFR), “until a department or agency head appointed or designated by” President Biden reviews and approves the rule. President Biden ordered that rules that have been sent to the OFR but not published in the Federal Register to be immediately withdrawn. For rules that have been published or issued in any manner but have not yet taken effect, President Biden ordered department and agency heads to “consider postponing the rules’ effective dates for 60 days” so they can be reviewed. The memo also calls for consideration of opening a 30-day comment period. The memo calls for the Office of Management and Budget director to implement the regulatory review.

Legislative Proposals

  • President Biden will soon send a proposed immigration reform bill to Congress. According to a fact sheet issued by the White House, the legislation, called the “U.S. Citizenship Act of 2021,” would:
  • Provide worker protections and improvements to the employment verification process.
  • Clear employment-based visa backlogs, recapture unused visas, reduce lengthy wait times, and eliminate per-country visa caps.
  • Make it easier for graduates of U.S. universities with advanced STEM degrees to stay in the United States.
  • Create an earned roadmap to citizenship for undocumented individuals, allowing undocumented persons to apply for temporary legal status and apply for a green card after five years if they pass criminal and national security background checks and pay their taxes. DACA “Dreamers,” temporary protected status beneficiaries, and immigrant farmworkers who meet specific requirements would be eligible for green cards immediately. After three years, all green card holders who pass additional checks and demonstrate knowledge of English and U.S. civics could apply for U.S. citizenship. Applicants must be physically present in the United States on or before January 1, 2021. A waiver is included for certain family unity or other humanitarian purposes.
  • Reform family-based immigration.
  • Increase diversity visas from 55,000 to 80,000.
  • Promote immigrant and refugee integration and citizenship.
  • Prioritize border controls that include technology and infrastructure improvements.
  • Manage the border and provide various resources to protect border communities.
  • Crack down on criminal organizations.
  • Address underlying regional causes of migration.
  • Reform immigration courts.
  • Support asylum seekers and other vulnerable populations.
  • Change the word “alien” to “noncitizen” in U.S. immigration laws.

It will be interesting to follow these myriad proposals and actions as they make their way through the agencies, the regulatory and legislative processes, and the courts. Some Republicans have already signaled their resistance to aspects of the legislative proposals. Sen. Lindsey Graham (R-SC), for example, said comprehensive immigration reform “is going to be a tough sell given this environment, but doing DACA, I think, is possible.” Stay tuned.

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