As most people are aware, former Vice President Joseph Robinette Biden Jr., the Democratic Presidential candidate has been confirmed by the U.S. Electoral College as the winner of the U.S. presidential election and will take office on January 20, 2021. For many non-Americans that are applying for visas or living in the United States as well as U.S. employers, U.S. citizens with foreign family members, or immigration lawyers, this this will come with some level of relief. Over less than four years of his presidency, President Donald Trump has made over 400 changes to U.S. immigration law and may try to make several more in his Administration’s last few weeks. The vast majority of the President Trump’s changes to U.S. immigration both limited immigration to the United States and made the process much more difficult in all aspects of immigration – family-based immigration, employment-sponsored visas, and for asylum-seekers.
It is important to understand what the new president’s administration can change on their own without an act of Congress passing news legislation in addition to the policy priorities of the new administration. Hopefully, in any case, most immigration lawyers will agree that the Biden Administration will bring a level of stability to U.S. immigration policy and practice.
The Biden Administration signaled a change from Trump’s policies on immigration throughout the presidential campaign. The Biden campaign outlined a detailed plan to “secure our values as a nation of immigrants”. As part of this plan, President-elect outlines the first 100 days of the Biden Administration in relation to immigration and addresses numerous necessary humanitarian issues including rolling back Trump’s asylum policy, refugees processing, protection under Temporary Protected Status (TPS), ending the “Muslim Bans”, and DACA. Even if President-elect Biden is only able to accomplish some of this agenda, it would be a significant improvement to the current state of the U.S. immigration system.
One of the more important changes to U.S. immigration likely to occur under the Biden Administration is that they will bring new leadership and skilled advisors into the cabinet that have a direct impact on U.S. immigration policy and procedures. Importantly, President-Elect Biden has announced the nominee of Alejandro Mayorkas to lead the Department of Homeland Security (DHS). Mr. Mayorkas has previously served in the Obama Administration as Deputy Secretary of DHS and previously as the Director of U.S. Citizenship and Immigration Services (USCIS). Mr. Mayorkas was himself an immigrant to the United States as a child when he fled from Cuba with his parents. Certainly, he has both professional experience and a personal understanding of the importance and opportunity of immigration. With skilled and experienced leadership in the area of U.S. immigration, the Biden Administration will quickly bring an appreciated level of stability and predictability back to U.S. immigration.
It is important to remember what the president can and cannot change in relation to immigration law. Much of U.S. immigration regulations is done through an actual change in law which requires a bill to be passed through U.S. Congress. Even when it is a mere administrative policy change often times, there may be other hurdles to be able to create significant changes.
Depending the outcome of the U.S. Senate races in Georgia as well as the willingness of the U.S. Congress to take on more politically hot issues regarding immigration will determine how much the Biden Administration will actually be able to accomplish. The U.S. Congress may be unwilling to take up large scale immigration reform or possibly even more piecemeal major reform to area of U.S. immigration law. Furthermore, it may be the economy and the COVID-19 situation (or the next national emergency) take the focus in the coming months and years.
Without Congress’ assistance, this leave the Biden Administration to focus repealing the laws enacted through Presidential Proclamations, rolling back those policies issued by the immigration agencies, and rebuild the parts of our immigration system that have been neglected, frustrated, or faced significant staffing issues under the Trump Administration. The Biden Administration may also roll back any pending regulations that have not yet been enforced.
With numerous repeals of the Trump Administration’s executive orders, possible a few new regulations, and some additional executive actions, the Biden Administration will appear to make significant accomplishments in U.S. immigration; however, in reality, any substantial changes or new laws will likely face significant headwinds. As the Trump Administration has learned firsthand, changing regulations is time consuming and contains significant protections under the Administrative Procedures Act (APA). The APA generally requires notice and comment rulemaking from the public and stakeholders before a regulation may be enacted. Deviation from the APA requirements or trying to enact “emergency” rules typically leads to court challenges.
The American Immigration Lawyers Association (AILA) has published “A Vision for America As a Welcoming Nation” as their association’s recommendation for the Biden Administration in relation to U.S. immigration. These recommendations would be a good starting point to reform the U.S. immigration system that has been dismantled and weaponized by the Trump Administration.
Even with some of the potential setbacks or difficulties enacting new immigration regulation through U.S. Congress, the Biden Administration should be able to wind back some of the most problematic policies of the Trump Administration and push for changes to current policy and procedures to strengthen the U.S.’s commitment to being a nation of immigrants.