Updated January 2021.

View Earlier Posts: Trump Era Immigration | Obama Era Immigration

  • What changes has Biden proposed?
  • What problems exist?
  • What options do aliens have?

This is a general overview. Schedule a consultation if you need legal advice. What’s written here can’t be relevant unless I know your specific facts. Following anything blindly is asking for trouble even when you buy a car; with immigration matters, it can ruin your life.

What changes has the new President offered?

Reuniting families

Biden plans to massively overhaul the immigration legal machinery, primarily through policies that are benevolent. He wants to create a task force to reunite migrant families parted at the US-Mexico border. He’ll reunite children who were forcefully separated from their parents. According to a court filing, 600 children require this.

Asylum

Asylum, withholding of removal, CAT protection – became an almost impossible objective under Trump. Among the imposed punishments were the Migrant “Protection” protocols which require applicants to wait in Mexico for their court hearings. Presently that number is about 65,000 people. The previous administration issued many court precedents and kneejerk policy decisions making asylum a very challenging form of relief. I imagine these will eventually be revamped or reversed. It’s too early to tell what form that may take.

Long term refugee solutions are one very smart initiative Biden seeks. For people fleeing Central America, the only lasting solution is to investigate the root causes and eliminate them. People flee the Northern Triangle (Guatemala, El Salvador, Honduras) and Mexico for good reason; usually violence, extreme poverty, and corruption. Criminal gangs are the de facto governments in the Northern Triangle, and the State Department presently discourages travel to many Mexican locations because they’re so dangerous. More or less the same thing happened to Jews in Germany in the 1930’s. I guess here, in 2021, someone finally paid attention.

Administrative Immigration Reform

Expect Biden to institute changes through executive orders to make obtaining permanent residence (green cards) easier. This would be removing some very high burdens put in place by Trump: the “public charge” rule, abuses of discretion, and weaponizing due process tribunals like immigration courts and the Board of Immigration Appeals.

Since most of the recent Trump immigration agency directors were appointed illegally – without Senate confirmation or succession as outlined by law – I suspect many of these punitive USCIS policies may be deemed inoperative.

So through whatever unilateral action possible, I’m guessing Biden will remove most of the draconian measures put in place by the Trump administration.

Family-based immigration.

Biden plans to initiate comprehensive immigration reform through changes in the law. As I’ve mentioned, this includes an 8-year path to permanent residency for all aliens now illegally present in the US; eventually they could pursue citizenship as well.

Biden’s reform includes a path for DACA recipients to transfer that eligibility into a direct application for permanent residency. I’m guessing that young people eligible for DACA who never applied for it would qualify as well.

LGBTQ petitioners will likely be provided explicit methods to sponsor family members as well.

The Immigration and Nationality Act.

After all his non-stop talking and promises made before he took office, Barack Obama was in prime position to comprehensively reform the immigration laws (not the policies or the regulations – the laws). A groundswell of support existed for it, and Obama enjoyed Democratic majorities in both the House and Senate. But Obama ignored immigration in favor of a questionable health care law. And after that he lost the opportunity. Biden benefits from a Democratic majority in both houses, but it’s slight. He won’t be able to pass sweeping change as Obama could’ve. Biden will no doubt have to compromise and possibly introduce changes bit by bit. But unlike Obama, Biden is an experienced politician. He knows how to do that.

Because aliens present in the US will be afforded relief, I imagine those waiting outside the US will be allowed faster entry. Aliens waiting abroad to join their families may be allowed to enter the US more quickly. Why? Because they followed the existing laws – they shouldn’t be penalized for it. That’s fair. Additionally Congress may increase immigration quotas across the board.

But unlike Barack Obama’s blown opportunity 12 years ago, Biden faces a tougher climb. It’ll take a while in all likelihood.

Employment-based immigration.

The changes proposed for this include clearing backlogs for work visas, reducing wait times, and eliminating per-country restrictions. Exemptions may be possible for students working in scientific or technological fields. H-4 employment authorization may be authorized, as well as incentives for high-skill nonimmigrant visas.

These are some of the goals of President Biden’s immigration agenda. He’ll do what he can through temporary orders, and seek comprehensive changes in the law through Congress.

What are the problems in Biden’s plan?

The last comprehensive reform – 1997 – sought to punish immigration violators more stridently. This didn’t work. It was a spectacular failure. The violations didn’t decrease, the methods to violate immigration laws simply got more creative. Costs to taxpayers? They’re still skyrocketing. Biden’s plan itself is proper. It addresses the current immigration situation in the United States, and seeks to remedy a problem which has been festering for decades.

Since the 1997 reforms passed, Congress hasn’t been able to agree on another immigration bill. When Obama finally introduced one in 2013, he’d lost both his momentum and his Congressional majority. Trump entered office amidst this immigration law vacuum, and promptly use administrative powers to punish, penalize, and smother most legal immigration avenues. Scattered and chaotic, these Trump-era policies left the immigration agencies disorganized and mostly led and managed by incompetents.

The overarching order for these agencies was to deny applications and petitions, and to generally make the process as difficult as possible. Trump targeted the Homeland Security Agency, Justice Department, and State Departments to enforce these policies. I won’t list what all these rules and administrative precedents were; suffice to say they were extensive – as anyone who attempted any immigration action in the past 4 years can attest. The ironic point of these measures was how inefficient they were: billions of dollars were spent, but court dockets kept backing up; and removals didn’t increase markedly either. All that increased were inefficiency and government spending.

Reorganizing and refitting those immigration agencies, and the EOIR in the Justice department, will take time. Similar to a massive ocean liner which takes 10 miles to reverse course; a top-heavy, system-ingrained, demoralized bureaucratic machine requires time to change. Since the new course of these agencies will be so dissimilar from the old; directors, heads of departments, and supervisors all must be retrained or replaced. That takes time. Learning how to implement new executive orders, rules, and policies will also take time. If Congress passes comprehensive reform, learning and implementing that will take time.

Policy changes like stopping deportations and removals can happen quickly, but long term changes will take longer. So therein lies the difficulty – reversing Trump’s nightmarish commands is a welcome action, but it requires months to put in place. Be patient.

I want a green card – what should I do?

As mentioned, I can’t put forth overarching legal advice on a website. I’d need to know your specific facts.

I can say that I know for a fact that the feeling of dread or uncertainty can be very hard to indefinitely deal with. It’s unnerving to wonder if ICE agents will descend on you at any moment during the day, or overturn your house in a midnight raid, or if your denial letter means that the ICE shutzstaffel will appear to cart you off to detention. Marriages with foreign national spouses deserve to plan their lives together – just as couples with 2 US spouses do. Families enjoy having immediate relatives here from abroad. But when aliens in the mix, the gripping fear of uncertainty over immigration concerns is very stressful. People that haven’t been through it don’t understand how debilitating the stress of uncertainty can be.

Even during the Trump administration I told alien families or workers that they’ve already invested in their lives and their futures. Married partners expect to stay together. Skilled alien workers intend to use those skills indefinitely as well. Unless extreme circumstances exist, I never advise clients to run their lives cowering in fear of the immigration agencies. It’s mentally much healthier, and gives you much more confidence in your future if you take action; you’re in control. Waiting in fear always drains energy and self-reliance. Why? Because the fear of uncertainty debilitates you.

Understand I don’t advise vulnerable clients to march blindly into certain disaster. But in general it’s better to aggressively take action rather than to sit back, waiting to react. There’s much less uncertainty in taking action.

(The following is hypothetical, it’s not legal advice.) Filing an I-130 is usually safe, as is applying for naturalization. An immigration court proceeding can be appealed administratively to the BIA, and later to a federal appellate court. If an unfair denial results from a petition or application, it’s probably best to appeal it. And especially with a new Biden administration taking root in Washington, you can always file a motion to reopen a previous case that was denied. Considering the previous administration’s disregard for the rule of law, you may have a good result.

If you have a clear idea of exactly what result you want, what sort of life you want in the United States – and why; usually you’ll be okay. Usually you’ll get the result you’re after. With clear precise goals that are morally right and fair; we usually get most of what we want. Those are good odds.

Conclusion

Since taking office, President Biden offered up sweeping changes to immigration law, changes long overdue. He’s seeking to end the repugnant separation of families at the Mexican border, ease up the almost ridiculous hurdles to asylum relief, and make immigration for families and employers a straightforward process rather than an grueling ordeal.

Difficulties may exist because he enjoys a very slim majority in Congress, and changes to the law may be slow in coming, or they may come in pieces. Administrative policy and rules changes will initially take longer because the immigration agencies need to be revamped. Presently their systems are chaotic and they’re poorly staffed.

For clients, with all things being equal – and barring any extreme circumstance – the best option is always to attack; to go after the problem and seek the result. You can’t run your life and your nervous system by continually guessing what the immigration agencies might do. It’s better to dictate to them.

(As far as seeking out the proper legal help – a lawyer that answers to a higher authority than expediency – you already know what to do, don’t you?)

View Earlier Posts: Trump Era Immigration | Obama Era Immigration

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