The Biden Administration on Immigration and COVID Restrictions

Immigration continues to make headline news. The Biden administration has been very active on this front in its first week. Meanwhile, sadly, COVID variants and global outbreaks are causing added restrictions. Wishing everyone well and the best of health.

COVID Travel Restrictions

The situation with travel to the United States keeps evolving. Concerns over new variants is increasing restrictions. The most up-to-date information can be found at the websites for the Center for Disease Control and Prevention, Department of State, and Department of Homeland Security. We are happy to discuss as well.

Effective January 26, the Center for Disease Control and Prevention (CDC) requires all air passengers entering the United States (including U.S. citizens and Legal Permanent Residents) to present a negative COVID-19 test, taken within three calendar days of departure or proof of recovery from the virus within the last 90 days. Airlines must confirm the negative test result or proof of recovery for all passengers two years of age and over prior to boarding. Airlines must deny boarding of passengers who do not provide documentation of a negative test or recovery. The CDC is also recommending testing after arrival and quarantine for 7 days.

Locally, the land border closure with Canada and Mexico continues to be extended in monthly increments. We expect this will continue for several months. “Essential travelers,” such as TN, L, E, and “commuter aliens” continue to cross, but family travel is not deemed essential. The local ports of entry are generally not processing nonimmigrant waiver applications, which means a backlog of applications is developing at headquarters. CBP’s website report that the agency has had 6,401 employees test positive for COVID, including 53 from Washington State. Consulates around the world are frequently operating in limited capacity, correlating with local COVID numbers. Our hearts and care go out to all affected.

New Administration, New Immigration Policies

The Biden administration placed immediate emphasis on immigration reforms. Here are a few big changes of note:

  • On Day 1, Biden revoked the Muslim-African travel bans, which were the subject of much litigation early in Trump’s term. Biden cited religious freedom and tolerance as reasons for overturning these bans. Vetting of all applicants will continue. These bans have been very hard on immigrant families, who experience different forms of family separation. The bans covered 13 counties, including Iran, Somalia, Sudan, North Korea, Syria, and Venezuela.
  • Biden ordered a 100-day pause on deportations, and rescinded a February 2017 Trump order which announced all-out enforcement without prioritization. The 100 day pause was then overturned in court. The executive order – court overturn pattern is alive and well.
  • A halt to border wall construction and ending of the “national emergency” on the southern border.
  • DACA, the program for Dreamers, was by order preserved.
  • Biden halted the plan to exclude noncitizens from census and apportionment of congressional representative calculations.
  • Reinstated deferred enforced departure for 18 months for Liberians.
  • Called for review of any pending regulatory actions and the delay of the effective date of regulations which have not yet taken effect. This is notable, due to the extensive issuance of rules in the last two months of the former administration. These reviews will impact H-1B and asylum programs in particular. The Biden team has stated support for labor protection measures with the H-1B program, including favoring H-1Bs for higher paying positions.
  • President Trump’s “Buy American, Hire American” Executive Order which has been replaced by President Biden with a “Buy American” Executive Order.

Comprehensive Immigration Bill Introduced

The Biden administration also sent an immigration modernization reform bill to Congress. The bill includes a legalization path for citizenship for unauthorized immigrants. It has major overhauls of the family and employment-based systems. Notably, the immigration courts which are hopelessly backlogged are given special attention. The bill makes substantial changes to the humanitarian forms of relief (asylum, VAWA, U and T visas), and prohibits discriminatory travel bans. The bill also addresses border and ports of entry, including accountability reforms and increased resources, technology, and infrastructure for border management.

H-1B Lottery Season

We expect the annual H-1B lottery will open up on March 1st, for a limited time. This is one of the most important opportunities to hire noncitizens for professional positions. Last year, the lottery window as open through March 20th. The agency received more than twice the number of permitted applicants, and hence the need for a lottery. This is the time to be planning to participate in the lottery, as appropriate.