With the inauguration of Joseph Biden as the 46th President of the United States, U.S. immigration policy is back in the spotlight. The vast majority of former President Trump’s changes to U.S. immigration prior to the pandemic 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.
The new administration has begun to unravel some of the more controversial policies that had been enacted since 2017. President Biden has already used Executive Actions, mainly Executive Orders (EO’s), to alter or abolish previous Executive Actions that had changed the course of immigration practices on a large scale. President Biden has the authority to make these changes without Congress passing new legislation.
The focuses of these first actions were on three areas: border and entry policy, interior enforcement and the bureaucratic organization of immigration engagement and enforcement. Probably the most anticipated was the repeal of the Trump Administration’s “Muslim Ban”. In 2017, early in the Trump administration, the president issued a series of Executive Actions that effectively banned individuals based on their Islamic religion. After a constitutional challenge, these actions were amended and rewritten to apply to classes of individuals in certain countries, mainly Muslim-majority countries. The Biden proclamation rescinds those actions and relies on existing State Department and Custom and Border Protection procedures to make decisions on visa issuances and border entries.
Last week, the White House and Democrats in Congress introduced the first major comprehensive immigration reform bill in 8 years. In the last two decades, several efforts at a comprehensive bill have been thwarted, including the well-known effort by the “Gang of Eight” – a bipartisan committee – that had put forth the last bill in 2013. The bill passed the Senate with bi-partisan support. However, Republican Speaker John Boehner blocked passage of the bill in the House of Representatives. Without Congress’ assistance, the Biden Administration will focus on 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.
One of the more important changes to U.S. immigration policy that is likely to occur under the Biden Administration is the selection of new leadership and skilled advisors for the cabinet that have a direct impact on U.S. immigration policy and procedures. Importantly, President Biden tapped Alejandro Mayorkas to lead the Department of Homeland Security (DHS) and his confirmation by the Senate was swift. 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.
Even with some of the potential setbacks or difficulties enacting new immigration regulations through the 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. We will hope for the best and we will see how these changes play out in new policies coming out of the White House.
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