The historic election of Joe Biden and Kamala Harris will have implications in every area of immigration law for at least the next four years.
The damaging executive orders issued by President Trump, which managed to curtail legal immigration by half during his administration, can quickly be undone by executive orders issued by the Biden administration while they work on legislation with Congress on more lasting immigration reform. Luckily, Joe Biden has signaled that he will do just that, which should bring relief for many who have been suffering from the restrictive immigration policies of the last four years.
Moreover, the administration of immigration laws is controlled by executive agencies such as the Department of State (which controls visa issuance); the Department of Homeland Security (which controls greencards, citizenship, asylum, and border policies); and the Department of Justice (which controls the immigration courts). Appointing reasonable agency leaders can quickly bring positive reforms which will overcome the damage done by the Trump administration’s policies.
Here are some common scenarios where we could see quick changes via executive action, or with the appointment of reasonable agency leadership, after the inauguration in January 2021.
How visa issuance will be affected under Biden administration:
President-elect Biden has already signaled that he will immediately undo the so-called “Muslim Ban” via executive action, which currently prevents the State Department from issuing immigrant visas to citizens of Yemen, Syria, Iran, Libya and Somalia, and which was later expanded to include citizens from Eritrea, Kyrgyzstan, Myanmar, Nigeria, Sudan and Tanzania. This will give immediate relief to US citizens who remain separated from their wives and children from these countries.
Hopefully, there will also be an immediate reversal of the Presidential Proclamation issued on April 22, 2020, which prevented visas from being issued for parents, siblings, and adult children of US citizens, as well as for wives and children of greencard holders. The ban is currently set to expire December 31, 2020, but it would not be surprising to see the Trump administration choose to continue it beyond that date, thus necessitating immediate executive action by President-elect Biden to reverse it after his inauguration.
Embassies worldwide have already begun reopening visa services slowly based on local coronavirus pandemic conditions, and the erasure of these unnecessary bans should result in more visas being issued, and more families being reunited, next year.
How removal proceedings in immigration courts will be affected under Biden administration:
Immigrations courts are housed under the Department of Justice, and thus are under the direct control of the Attorney General. Under the Trump administration, the Attorney General issued several harmful decisions which made it more difficult for judges to pause or terminate removal proceedings. This made it especially difficult for people who had a chance of getting immigration benefits through other immigration agencies, making them more vulnerable to deportation orders instead.
Under the Biden administration, the appointment of an Attorney General who understands that immigration judges should have the independence to manage their own dockets will result in immediate relief for everyone caught in this difficult situation.
In addition, the Trump administration made it a priority to deport every single person without immigration status, thus doubling the cases in immigration courts and almost breaking an already overburdened system. A commitment by the incoming Biden administration to reverse this policy by closing non-priority cases, as well as giving more resources for the courts, will help improve the backlog crisis faced by the immigration courts.
How greencard or citizenship applications will be affected under Biden administration:
Under the Trump administration, applying for a greencard became a lengthier and more complicated process with the redefinition and expansion of who is considered a “public charge.” The rule imposed burdensome financial disclosure requirements for any greencard applicant, and made people who would otherwise be eligible for beneficial public programs too afraid to apply. Moreover, processing times for greencard or citizenship applications ballooned under the Trump administration, as USCIS has shifted its focus from providing immigration benefits to acting as another tool of immigration enforcement.
If the Biden administration appoints someone to lead USCIS, who understands that the true mission of his or her agency is to serve those who qualify for immigration benefits, we can expect quicker processing times and a reversal of the onerous new “public charge” rules. In fact, President-elect Biden has indicated that he hopes to get rid of the public charge rule within the first 100 days of his administration. There are already early indications that at least some USCIS workers seem eager to return to their true mission.
How asylum policies will be affected under Biden administration:
No aspect of immigration law has been more affected under the Trump administration than asylum. President-elect Biden has pledged to immediately reverse the harmful and un-American asylum policies imposed over the last four years – including ending the harmful practices of “Migrant Protection Protocols” and “metering,” which forced vulnerable asylum-seekers to stay in Mexico under dangerous conditions; ending requirements which made it nearly impossible for victims of domestic or gang-violence from getting asylum; and ending prolonged detention.
The Trump administrations never did manage to complete a wall on the US border with Mexico, but it was successful in building an “invisible wall” that restricted immigration severely. There is no doubt that the results of the 2020 election have given new life to the hopes and dreams of many immigrants and their families. It will be up to the immigrant community and its advocates to make sure that the incoming administration lives up to its promises.
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