Early in his presidency, Joe Biden brought the U.S. Citizenship Act of 2021 to Congress and revealed its highlights at https://www.whitehouse.gov/briefing-room/statements-releases/2021/01/20/fact-sheet-president-biden-sends-immigration-bill-to-congress-as-part-of-his-commitment-to-modernize-our-immigration-system/.
Members of the Democratic Party formally introduced that legislation February 18 and Harris Beach has begun to analyze each section of its full text.
Before that coming post, we review the executive orders the president has issued in his first four weeks. As our clients are inquiring most frequently about travel restrictions, we list those first and the others in reverse chronological order.
1/25/21: Proclamation on the Suspension of Entry as Immigrants and Non-Immigrants of Certain Additional Persons Who Pose a Risk of Transmitting Coronavirus Disease
This eagerly awaited Order continued the restrictions on entry of those physically present within the Schengen Area, the United Kingdom (excluding overseas territories outside of Europe), the Republic of Ireland, and the Federative Republic of Brazil during the 14-day period preceding their entry or attempted entry into the United States, and added the same restrictions to the Republic of South Africa.
The Order does not apply to U.S. citizens, and further exempts legal permanent residents (green card holders) as well as certain family members of U.S. citizens and legal permanent residents. There are a few other, less common exemptions, and Harris Beach recommends that potential travelers reach out to one of our immigration attorneys for more detailed advice.
1/20/21: Proclamation on Ending Discriminatory Bans on Entry to the United States
This Order revoked four separate Executive Orders and Proclamations issued between 2017 and 2020, having the practical effect of banning travel to the U.S. of citizens of predominantly Muslim nations, as well as certain African nations.
The Order directs the Department of State to expeditiously issue visas to any applicant who was subject to the bans and in the process of seeking a waiver. For excellent statistics on the effects of these bans over the last four years, we encourage you to consult the Department’s website.
2/4/21: Executive Order on Rebuilding and Enhancing Programs to Resettle Refugees and Planning for the Impact of Climate Change on Migration
This Executive Order strengthened and revitalized the United States Refugee Admissions Program (USRAP) and Iraqi and Afghan Special Immigrant Visa program by directing the Secretaries of State, Defense, and Homeland Security to review them and make recommendations. The former program saw between 70,000 and 85,000 refugees admitted per year from 2013 to 2016, but a range from 22,000 to 53,000 admitted between 2017 and 2019. The Special Immigrant Visa Program since 2008 has seen the admission of 94,000 Iraqi and Afghani employees of or on behalf of the U.S. government and 4,000 Iraqi and Afghani translators, but has been plagued by difficulties in the application process.
This Order also has the practical effect of revoking Executive Orders and Presidential Memoranda from 2017 and 2019 that added additional vetting to the refugee admissions process.
2/2/21: Executive Order on the Establishment of Interagency Task Force on the Reunification of Families
This Executive Order created a task force containing the Secretaries of State, Homeland Security, and Health and Human Services, as well as the Attorney General and other members, designed to identify all children separated from their families during President Trump’s term. The number is believed to be over 5,500, and until now reunification had been effected only through litigation against the government and through the individual efforts of members of Congress. Some advocates feel that the creation of a task force will not go far enough, but the task force’s progress report is due after 120 days and the President can involve the government further at that time.
This Order also has the practical effect of revoking a June 2018 Executive Order that prioritized detaining families together instead of separating them. It was later revealed that over one thousand families were separated after that Executive Order.
2/2/21: Executive Order on Creating a Comprehensive Regional Framework to Address the Causes of Migration, to Manage Migration Throughout North and Central America, and to Provide Safe and Orderly Processing of Asylum Seekers at the United States Border
“Securing our borders does not require us to ignore the humanity of those who seek to cross them.” This Executive Order seeks to remedy the morass of policies and failings that caused long-term detentions, missed opportunities to apply for asylum, missed court hearings, and ultimately led to President Trump’s Migrant Protection Protocols program, which created camps in Mexico where would-be asylum applicants would wait for opportunities. The Order also seeks to address the root causes of migration to the U.S. and does so with a three-pronged approach:
- United States Strategies for Addressing the Root Causes of Irregular Migration and for Collaboratively Managing Migration in the Region;
- Expansion of Lawful Pathways for Protection and Opportunity in the United States; and
- Restoring and Enhancing Asylum Processing at the Border.
This Order also has the practical effect of revoking five separate Executive Orders, Presidential Proclamations, and Presidential Memoranda that enhanced detention capabilities and strengthened the Migrant Protection Protocols program.
2/2/21: Executive Order on Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans
This Order seeks to restore such faith through task force creation and policy management, but also directly addresses two areas of the immigration laws:
Public charge inadmissibility — the Trump administration was laser-focused on keeping individuals from becoming permanent residents via an ostensible belief that they would use public benefits after obtaining such residence, despite evidence to the contrary. Here, President Biden would assign a task force to review disparities in the application of existing public charge regulations, including the nascent and extremely burdensome I-944 declaration.
Naturalization — The Biden Administration’s commitment to naturalization, or the process by which permanent residents and some others become U.S. citizens, is borne out by the creation herein of two separate task forces, one of which has a short 60-day turnaround time to develop a top-to-bottom plan to improve every facet of the process. This section of the Order had immediate impact as on February 22 the Trump Administration’s newer, more difficult naturalization civics examination was withdrawn.
This Order also has the practical effect of revoking a single 2019 Presidential Memorandum that sought to better enforce certain financial affidavits of support in family-based immigration cases (that does not appear to have had any effect).
1/20/21: Preserving and Fortifying Deferred Action for Childhood Arrivals (DACA)
This Executive Order has no practical effect but is a symbolic gesture of the Biden Administration’s support for the DACA program that now protects some 650,000 people from deportation and provides them employment authorization. The DACA program has been in and out of federal court litigation since President Trump took office, including before the U.S. Supreme Court in June 2020, where it was upheld. As recently as December 2020, federal district courts required the Department of Homeland Security
As the DACA program was put into place nine years ago, its oldest grantees will soon approach forty years old. Some estimates state that DACA grantees are parents to over 250,000 U.S. citizen children. We urge you to watch the Harris Beach Immigration Blog for an analysis of the just-revealed U.S. Citizenship Act of 2021, which contains the “Dream Act”, intended to put DACA grantees on a path to permanent residence.
1/20/21: Reinstating Deferred Enforced Departure for Liberians
Deferred Enforced Departure (DED), which is relief from deportation that also provides temporary work authorization, is similar to the more common Temporary Protected Status (TPS). DED, unlike TPS, can be directed by a sitting president and does not require the Congress.
As a result of a 1991 civil war, a 2002 attack on Monrovia, and a 2014 Ebola outbreak, 34,000 Liberians living in the U.S. have been protected alternately by six separate grants of TPS and DED. President Trump ended DED and created a wind-down period that was finally extended through January 20, 2021, perhaps expecting to terminate all protections in a second term.
In this Executive Order, President Biden reinstated DED in full for Liberians through June 30, 2022, and the protection is clearly extendable at that time.
1/20/21: Proclamation on the Termination of Emergency With Respect To the Southern Border of the United States and Redirection of Funds Diverted To Border Wall Construction
This Order terminated the National Emergency declared in a February 2019 Proclamation relating to the southern border, and directed the cessation of all work on the southern border wall. The Order also seeks a progress report on all wall projects and directs an accounting of all past expenditures.
1/20/21: Executive Order on the Revision of Civil Immigration Enforcement Policies and Priorities
This powerful executive Order revoked a January 25, 2017 (note the date) Order that placed nearly every unauthorized person at risk of deportation, encouraged state and local governments to enforce the [federal] immigration laws, revived the Secure Communities program that had local jails informing on undocumented persons even without criminal convictions, attempted to strip federal funding from “sanctuary cities”, and encouraged criminal prosecutions for illegal entry. The Biden Order directs various Secretaries, Directors, and the Attorney General to “review any agency actions developed pursuant to [the Trump Order] and take action, including issuing revised guidance…” The new Order has already begun to bear fruit, as on February 18 the Director of Immigration & Customs Enforcement issued a Memorandum with new, more sensible enforcement priorities (focusing on terrorists, gang members, aggravated felons, and those who entered the U.S. after November 1, 2020.
Our Immigration Law Practice Group includes immigration attorneys that work across New York state in our Albany, Buffalo, Ithaca, Long Island, New York City, Rochester and Syracuse offices. Our immigration lawyers focus on strategies – including immigrant visas for permanent U.S. resident status and temporary visas for foreign nationals – to ensure that employers are able to hire, transfer, and retain the brightest and best non-U.S. talent.