Published November 14, 2020

By: Richard Hanus, Esq.

In recent memory there has not been an administration as singularly focused on immigration law as President Trump’s. Donald Trump ascended into office because of loud immigration rhetoric, and while in the White House, dedicated a massive effort at transforming our nation’s immigration policies impacting both illegal and legal immigration.  As to curtailing illegal immigration, although he failed to round up and deport millions of undocumented as promised, many would say his actions were largely consistent with his lofty promises and no matter their utility.  On the legal immigration side, Trump’s initiatives included dozens of unprecedented measures placing obstacles in the way of legal immigration processes such as asylum, work visasfamily based green cards and DACA.  In sum, it is fair to say that the Trump administration, through their deeds and words, communicated the message that both illegal AND legal immigration are bad for the U.S.

On January 20, 2021, President-elect Joe Biden takes office and his approach and attitude about immigration will be far different.  His immigration enforcement efforts will include deportation priorities focused on foreign nationals committing crimes or who have repeatedly and flagrantly ignored our immigration laws, and not the undocumented population who are otherwise law abiding.  As to legal immigration, we can expect a far more welcoming and inclusive tone, where foreign nationals will be seen for their potential to contribute to our nation, rather than as burdens or invaders.

The following is a summary of the top 5 ways our immigration system will be impacted for the near term:

1.   DACA – Deferred Action for Childhood Arrivals:  This is the Executive Order put in place by President Barack Obama, and as a result roughly 750,000 young adults who were brought to the U.S. as youngsters were able to receive renewable 2 year employment authorization documents and be shielded from deportation.  Qualifying for the program depended on satisfying a number of requirements including the completion of high school and a background free of serious criminal activity.  Through the program, undocumented young adults have been able to gain educations and start careers as contributing members of society, including as doctors, lawyers, engineers, artists, scientists, teachers and trades professionals.  Despite President Trump’s best efforts to terminate the program, DACA survived and with Biden in office, it will continue for at least another 4 years, and maybe as part of a more comprehensive plan, including a permanent path to legalization.

2.   Changing Deportation Priorities:  President-elect Biden will pause all deportation of non-criminal foreign nationals for a period of 100 days so that a new removal/enforcement agenda is put in place.  We can expect a return to policies similar to President Obama’s, where criminals and flagrant immigration law violators will be priorities for arrest and deportation.   The assumption is that the vast majority of the 11.5 million or so undocumented foreign nationals residing in the U.S will return to low priority deportation status, and instead be viewed as prospectively benefitting from a path to legalization – aka comprehensive immigration reform, aka amnesty.

3.   Comprehensive Immigration Reform:  President-elect Joe Biden ran on a platform which included a goal of enacting a path to legalization for the 11.5 million otherwise law abiding, undocumented foreign nationals living in the U.S.   To say this is a hot button political issue is a huge understatement given the rhetoric President Trump successfully ran on in 2016 and later featured during his presidency.  Many in our nation simply cannot come to the conclusion that absorbing this portion of our population already living among us – some for decades – is better than seeking their deportation.  The highly charged political interchanges taking place when it comes to DACA give us a glimmer of what’s to come when our nation looks to entertain any discussion of a path to legalization.  Needless to say, if the Democrats become the majority voice in the U.S. Senate (which will be revealed after the upcoming run offs in Georgia) the prospects of any such path to legalization legislation is that much greater.

4.   Work visas:  The Trump Administration implemented unprecedented numbers of regulatory and policy changes to make work visa processing for foreign nationals and their employers exceedingly difficult, especially for H-1B professional work visas.  Restrictions on visa issuance due to exorbitant wage requirement increases, a narrowed definition of H-1B eligible “specialty occupations”, restrictions on visa issuance due to COVID, and limitations on workers’ third party location assignments, are just a few examples.  There is no question Biden will be looking to reverse most if not all of these measures, measures the new administration sees as having been implemented strictly for the purpose of limiting legal immigration. The question becomes which of these measures will be reversed and how quickly the reversal can be accomplished.

5.   Asylum, Refugees, Temporary Protected Status:  The Trump Administration took unprecedented measures to prevent asylum seekers from seeking refuge at our borders, including directing those fleeing harm to go back to their home countries to await a decision on their claim.  Any changes the Biden administration seeks to make on these initiatives could take many months if not years.  On the other hand, we can expect a Biden administration to allow more refugees (pre-approved asylum seekers) to enter the U.S. after the Trump administration decreased the number to record annual lows (18,000).  We can also expect executive action to grant Temporary Protected Status or “TPS” (temporary legal immigration  status) for Venezuelans present in the U.S., and in all likelihood, enact measures to allow TPS to continue for qualifying El Salvadorans, Haitians, Nicaraguans, Sudanese, Nepali and Hondurans residing in the U.S.

PUBLISHED November 14, 2020– “IMMIGRATION LAW FORUM” Copyright © 2020, By Law Offices of Richard Hanus, Chicago, Illinois