Immigration Changes With The Biden Administration

The Trump Administration has been historically restrictive on U.S. immigration. Everyone expects some change with the Biden Administration. I’ve tempered my expectations, but have put down a few thoughts here.

A pattern emerged over the past four years, where the Trump Administration launched a restrictive initiative, which was later challenged and at least initially enjoined in federal court. It started with the Muslim-country travel bans early in the term. Towards the end of term we saw various business immigration rules implemented in a rush, and then later put on hold by courts. DACA was on, then off, and now is on again. Meanwhile, USCIS adjudications became progressively more restrictive over Trump’s term. Even the most ordinary application became challenging. Processing timelines for applications now take longer then they did right after 9/11, without just cause. The Administration then issued several new immigration restrictions in 2020, citing COVID.

Now comes soon the Biden Administration. Many of Trump’s initial policies are by Executive Order, and these can be stricken immediately upon taking office. Agency policy memorandum can be stricken and/or rewritten as well. Legislative changes won’t be as easy, of course.

Here are some predictions:

  • We should see changes to the current travel bans, ordered by Presidential Proclamation. The Muslim bans will be stricken sooner than later, as will the immigrant and nonimmigrant visa bans. The travel bans related to COVID will likely stick for a while.   
  • Biden will support DACA and DREAMers. However, until legislation is passed, this issue will continue to be litigated. Many states opposed DACA, and still do.
  • USCIS adjudications and case processing will re-calibrate. I’m really hopeful for better days here. Timelines and adjudications have gotten really unrealistic, in some cases. The agency will also move towards modernization, slowly still, as it has been trying to do for 20 years now. At some point, filing fees will go up. The agency tried to raise filing fees on average by over 20% per application, but this fee hike was recently held up in court, and seems to be shelved for the moment.
  • All humanitarian forms of immigration relief will be revisited by the Biden Administration. I expect the annual refugee numbers to be increased, perhaps to Obama Administration levels. The new asylum restrictions will be suspended, as well as some of the administrative case law decisions made under the Trump Administration.
  • The northern border closure will continue for at least a few more months, perhaps with some sort of opening in stages thereafter, with COVID testing requirements, as were recently implemented for air travel.
  • There will be a new push for lifting per-country limitations in employment-based immigrant categories, to provide relief to backlogged Indian nationals. The Fairness in High-Skilled Immigration Act did not pass, but the concerns remain. However, any adjustments will need to be fair to those who are already in the country.
  • Immigration court backlogs will continue.  The national immigration court docket, which is historically backlogged, needs to be addressed through legislative action. An “overhaul” of the system is needed.
  • Consulate delays will continue, due to COVID. For example, most of the Consulates in Canada are operating on a limited basis, due to current outbreaks.  Plan ahead.
  • I expect to see more audits from the Department of Labor, in light of current unemployment numbers. An audit is where the agency asks to see all the resumes, the recruitment results, and other documentation for a labor certification application. It adds time to the process, and everything needs to be in order.
  • Some interviews will get waived. The agencies need to review its processes for both efficiency and safety, as well as vetting, and there are situations where waiving interviews makes sense, for everyone involved.  For example, not everyone on the west coast should be required to fly to Toronto for an E visa interview, to renew their visa. CBP will inspect them on admission.
  • I don’t expect immediate changes in regards to agency policy and legalized marijuana, although eventually I expect adjudicators will be given more discretion.
  • There is a reasonable chance that legislation favoring physicians and nurses will get a harder look this year, in light of the pandemic. I’m a little surprised Congress hasn’t done more here in 2020.

As always, it shall be interesting. For clients trying to plan, allow plenty of time, and be prepared to overdocument things as necessary. We can help.

Wishing all a healthy and happy 2021!