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117th Congress Preview: Immigration

By Mark Disler

President Biden’s immigration program can be described in two broad categories: that which he can achieve by executive order or other administrative action, including by executive agencies; and that which will require legislative action.

Executive Action

One way of viewing the new President’s discretionary actions regarding immigration is to consider a variety of policies President Trump put in place and look for a return to the status quo ante. As early as the first working day of his administration, President Biden would begin to implement, inter alia, the following actions he has promised to undertake in his first hundred days:

  • Reverse the Trump administration’s public charge rule.
  • Take whatever steps are necessary to assure Dreamers and their parents may remain in the U.S.
  • Rescind travel bans.
  • End the national emergency enabling the diversion of federal funds from the Department of Defense to fund the wall.
  • Immediately take steps to ensure that those with Temporary Protected Status (TPS) are not vulnerable to unjustified return to their home countries.
  • Streamline and improve the naturalization process for green card holders.
  • Convene a regional meeting of leaders, including from Central America, Mexico, and Canada to address factors affecting migration and to produce a regional resettlement solution.

While Biden committed during the campaign to reverse the Trump administration’s asylum policy changes within his first 100 days, his team has since made clear that such reversals will take longer to implement, although perhaps as quickly as within six months.

Legislative Action

President Biden plans to submit legislation which would create a roadmap to citizenship for undocumented immigrants, which he estimates to be 11 million people. His legislation would also reform the temporary visa program for seasonal workers, which will include measures to assure that there is a genuine need for such workers, and that they will be paid a fair, prevailing wage. Similarly, he has promised reform of the other temporary worker visa programs, such as high-skilled workers. Here too, Biden emphasizes the need not to crowd out workers already in the U.S. in favor of temporary immigrants being paid at lower wages. After mechanisms are in place to assure this will not happen, he would increase the number of high skill immigrant visas and eliminate per-country caps. He would provide a path to legal status for agricultural workers based on work history, and a faster track to a green card and ultimately citizenship, while also ensuring that labor, safety, and other worksite and living condition requirements are enforced.

In the face of suggestions in recent years that legal immigration be tilted much more in favor of workers, particularly higher skilled workers, and away from family reunification, Biden has rejected what he considers “the false choice between employment-based and family-based immigration.” Indeed, in light of very lengthy delays for those eligible for family visas due to per-country caps, Biden would provide approved applicants a temporary non-immigrant visa until the permanent visa is approved. Moreover, he has called for permitting legal permanent residents to bring in foreign spouses and children as immediate family members not subject to numerical caps.

Biden has endorsed a new visa category, for place-based immigration. It would allow mid-size and large cities and counties to petition for additional visas to support a region’s economic development strategy where employers certify there are available jobs and no workers to fill them.

Biden will seek greater investments in technology at and between ports of entry, including cameras, sensors, large-scale x-ray machines, and fixed towers, to control undocumented entry into the country. He will seek cooperation with Canada and Mexico in addressing border control issues.

He will reverse the Trump administration’s reduction in refugee admissions, which he can undertake with the acquiescence of Congress. And to facilitate processing of administrative immigration cases, Biden has pledged to double the number of immigration judges, court staff, and interpreters.

During the campaign he said such legislative proposals will follow his first 100 days wherein he will first undertake administrative actions, but he has recently stated he will immediately send immigration legislation to Congress upon his inauguration. His team has indicated that his initial legislative effort will be broad. Immigration reform legislation would be part of a crowded early agenda. Addressing both the health and economic ramifications of the COVID-19 crisis will be large congressional tasks that will need immediate attention. Biden has also indicated that addressing infrastructure and climate change are early legislative priorities. It appears that the new President will also make immigration reform a top early priority. Such legislation may not move quite as quickly as immigration reformers would prefer under President Biden given the complexities of the issue. It is very likely, however, that at a minimum congressional hearings and markups will take place in his first year. Floor action in at least one House is also likely, but with narrow legislative majorities in both chambers, compromises on some elements of the Biden legislation will probably be necessary.