Biden’s Immigration Plan

By Matthew P. Daley

This is a first look at President Biden’s immigration plan and will likely be followed by analyses in greater depth as the Congress takes up his proposals. Upon first reading, one is hard pressed to identify any major “ask” of the advocates of increased immigration that has been omitted. Together with President Biden’s Executive Orders, this proposal, if adopted, will vacate restrictions on immigration adopted during the Trump Administration and ease a number that were in place during the Obama Administration. Absent is a clear commitment to controlling our borders (however that is done) and returning illegal/unauthorized aliens to their homelands. The result will be significant increases in immigration of all types to the US, the exact magnitude of which is difficult to forecast due to uncertainties regarding future enforcement policies and factors which drive immigration. The Biden plan does not announce “open borders” as its objective, but one may be forgiven for suspecting that is the direction in which the US will travel under it.

To date, the major themes have been articulated and a 100 day pause in deportations ordered, including those who are subject to judicial removal orders, but while the pan has been sent to Congress, an actual bill has not yet been introduced. Immigration law and issues associated with it are complicated and the expression “the devil is in the details” will often apply. Broadly speaking, the proposal will offer amnesty to most of nearly 11 million illegal aliens in the US, facilitate family-based immigration, increase refugee admissions, ease asylum standards and grapple with employment-based immigration. The thrust of the various proposals will be to increase immigration of all types. Major headings and some indication of where contention will arise follows.

The Dreamers

Biden’s proposal would cover the “dreamers,” or Deferred Action for Childhood Arrivals, i.e., those young people who were brought to the United States illegally as children by adults, and makes them immediately eligible for green cards which denote legal status and permit them to work, as well as being on a pathway to citizenship. There is broad support for this measure and if put to a stand-alone vote in the House and Senate, it most likely would pass.

Other Undocumented/Illegal aliens

All those who arrived before January 1, 2021 would be able to apply for some form of temporary legal status, but initially would not be eligible for green cards. Five years after passage of the law, those in this group who pass background checks (the criteria for which have not been specified) and have paid their taxes could apply for green cards. They would become eligible for citizenship after another three years. This part of Biden proposal will likely encounter strong debate as some Members of Congress will be reluctant to put those who crashed the gates on a path to citizenship as opposed to offering them legal resident alien status. In a symbolic step, the proposal would also replace the word “alien” with “noncitizen” in federal regulation and laws. Administrative guidance to agencies dealing with immigration issues has already banned use of the term “alien.”

Increasing Refugee Admissions

The Biden plan will significantly increase the number of individuals admitted to the US as refugees, a step that will be generally welcome. The reductions in refugee-admissions numbers under President Trump left many Americans with a sour taste in their mouths, especially given the service that thousands of Iraqis and Afghans undertook in direct support of US military operations.

The No Ban Act

This is part of the plan titled the “No Ban Act” that would prohibit discrimination on grounds of religion and curb the authority of the President to issue bans in the future. The ban on religious discrimination is likely to pass easily since our national security concerns can be addressed through other mechanisms. President Biden has already rescinded the Trump Administration ban that applied to several Muslim majority nations as well as a couple of non-Muslim countries. Since the country specific ban was symbolic rather than substantive (we have other ways to address who receives admittance to the US) it has little import.

Temporary Protected Status and Agricultural Workers

The TPS program provides legal status to individuals from countries afflicted by natural disaster or violent conflict, but who were expected to return home at some point. Under the Biden proposal, they and agricultural workers would be eligible immediate permanent residency.

Encouraging Family-Based Immigration

The Biden plan would make a number of changes to reduce wait times and increase country visa caps. It would eliminate discrimination against LGBTQ+ families and allow some to join their families in the US while waiting for green cards to become available. We will need to see the text of the bill to learn how it defines “family.” If extended families were eligible as opposed to nuclear families, the increased immigration would be substantial.

Asylum

Asylum claims would no longer need to be filed within a one-year deadline and protections for certain categories such as victims of crimes would be increased as would the number of visas available to those categories.

Employment Related Immigration

The plan would increase employment-related immigration through a number of steps, including allowing dependents of certain visa holders to obtain work permits. It also aims to “incentivize” higher wages for non-immigrant, high-skilled visas to level the playing field for American workers.

Border Security

The plan would authorize increased budgets for border security by investing in screening technologies aimed at criminal enterprises, but apparently not at reducing the number of illegal/undocumented migrants crossing the southern border. Of course, authorizing increased funding for border security is not the same thing as appropriating the funds. Safe to assume that wall construction will halt. After the actual text of a bill becomes available, one could seek for language dealing with people who enter legally with a visa, but overstay or otherwise violate the conditions of the visa. This category accounts for a significant proportion of those now illegally in the U.S., but it would not be accurate to call them “undocumented.”

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