Statutes of Liberty: A Man, A Plan, A Trans Am — President Biden’s Likely Moves on Immigration

This sponsored column is by James Montana, Esq. and Doran Shemin, Esq., practicing attorneys at Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact James for an appointment.

Joseph Robinette Biden Jr. will be the 46th President of the United States. What’s next for immigration? We’re here with a few careful, hedging predictions.

There are four major ways a Biden presidency will influence immigration policy: exercising the power of prosecutorial discretion, executive orders, promulgation of regulation through various federal agencies, and supporting (or refusing to support) legislation from Congress.

Prosecutorial Discretion

During the Obama Administration, the Department of Homeland Security concentrated its finite immigration enforcement resources on criminals, recent border crossers and people who posed a threat to public safety. The Trump administration took the opposite approach, by broadening its enforcement focus to embrace nearly all undocumented migrants, and by attempting to add enforcement capacity at the same time.

We predict that the focus will change, but that the increased enforcement capacity remain. This means that even with a narrower prosecutorial target, the deportation numbers are unlikely to decrease in the medium term — whether Biden follows through on his campaign promise of a 100-day moratorium on deportations or not.

Executive Orders

We believe that President Biden is likely to announce the rescission of the travel bans imposed during the Trump administration. The Supreme Court stepped in to stop the rescission of DACA, but we think that the Court is unlikely to act to preserve the Travel Bans, because the Travel Ban orders did not confer any government benefits; in fact, they did the exact opposite. The Supreme Court upheld the latest iteration of the travel ban as a legitimate exercise of Presidential power, and we expect that it would treat a rescission in the same way.

Regulatory Reversals

We also expect the Biden Administration to reverse or refuse to defend various federal regulations imposed during the Trump presidency. As our loyal ARLnow readers know, the Public Charge rule has been hotly contested in federal court. We expect that if litigation is still ongoing when Biden takes office, the Biden administration will refuse to defend new public charge rule, and so the rule will revert to its pre-Trump state.

Another regulation that has been contested and is currently enjoined is the USCIS fee increase. This is an area where we don’t expect a total reversal; we do expect some moderate fee increases to go into effect. Whether those increase will be as huge as those proposed by the Trump Administration is an open question.

We also expect the Biden administration to rescind a proposed rule that would prevent H-4 visa holders from obtaining employment authorization. H-4 visa holders are spouses or dependents of H-1B visa holders. After satisfying some other requirements, H-4 spouses may apply for employment authorization. A Biden administration is likely to rescind this proposed rule, sending things back to the status quo of the Obama administration.

Finally, the Trump Administration has recently proposed that the H-1B lottery be replaced by a strange auction system in which applicants are rank-ordered by salary and then the most lucrative positions are picked first. We expect that proposal to sink without a trace in January.

Legislation

The odds of comprehensive immigration reform remain low. Neither President George W. Bush nor President Obama, despite one-party control of the legislative machinery, was able to accomplish it. What are the odds that Biden and McConnell will do better?

Our prediction for legislative reform is more modest: a legislative effort aimed at the elimination of per-country limits for employment-based visas.

Currently, all employment-based visas have yearly quotas, depending on the category and immigrant’s country of birth. These quotas have been built into our immigration system for decades, and, over time, their effects have become more pronounced. Immigrants from certain countries wait years, and sometimes decades, before they are actually eligible for permanent residency.

For example, visas are available to Indian nationals who hold advanced degrees and got in the visa line in September 2009, meaning there is currently about an 11-year wait time. Eliminating this per-country limit would get rid of the decades-long wait time while pulling talented individuals into the U.S. labor market.

This is not a new idea. Vice-President Elect Kamala Harris proposed a bill that would have eliminated the per-country limit for employment-based visas in 2019. The bill ultimately failed.

As always, we would love to hear your thoughts and we will do our best to respond.