How President Biden is Changing Immigration Rules and What it Means for You

We are a week into the Biden Administration, and expectations are already high that its policies will be a dramatic reversal of what we experienced under the Trump Administration.

President Trump’s immigration policies were particularly unfriendly to immigrants and often made the system more challenging and unpredictable for employers. While several high-profile policies dominated the news cycles – including a ban on entrants from certain Muslim countries, the construction of border walls and the administration’s controversial family separation policy – the Trump Administration also made a number of less-publicized changes (sometimes referred to as “the invisible wall”) to regulations and day-to-day practices that made life difficult for individuals and employers trying to navigate an already challenging system.

What changes can we expect from the Biden Administration? The president has already hit the ground running with multiple actions. The measures aim to undo some of the changes of the last four years, as well as overhaul the immigration system. The actions taken during the first week include:

Executive Orders

After being in office for less than six hours, President Biden signed a number of executive orders relating to immigration. These included:

• Revoking the entry ban for immigrants from several countries with predominantly Muslim populations (often referred to in the media as the “Muslim Ban”)
• Halting construction of the wall along the U.S./Mexico border
• Refocusing enforcement on national security threats and individuals threatening public safety, as opposed to undocumented families and asylum seekers; this includes a 100-day moratorium on deportations to give the Department of Homeland Security an opportunity to reassess
• Ordering that steps be identified to restore and fortify the Deferred Action for Childhood Arrivals (DACA) program
• Revoking the previous executive order that excluded undocumented immigrants from being included in the census count
• Extending the Deferred Enforced Departure program for Liberians

Additionally, more immigration orders are expected soon.

Law Changes

In the days leading up to his inauguration, Biden announced details of his proposed overhaul of the immigration system. The plans include:

• Creating a path to citizenship for as many as 11 million people
• Clearing the backlog of permanent resident cases and eliminating per-country caps
• Adding immigration judges
• Providing legal counsel for children appearing at the border
• Developing consistency in workplace enforcement and creating a commission to replace the I-9 and E-Verify programs

Over the past two decades, passing comprehensive immigration reform has been a challenge, regardless of which party has controlled the executive and legislative branches. It remains to be seen whether there is enough bipartisan support to get it done now.

Regulations

On his first day in office, Biden put a hold on any pending regulations that had been announced but had not yet become active. Since the November elections, DHS and the Department of Labor released a flurry of regulations to reform immigration rules before the transfer of power. These are referred to as “midnight regulations,” and it’s common for an incoming president to delay and attempt to modify those passed by a previous administration.

In addition to being delayed, many of the “midnight” rules will also be subject to significant legal challenges. For example, several courts have found that former Acting DHS Secretary Chad Wolf was serving illegally, and as a result, many of the rules he proposed are considered to have been enacted illegally. Recent changes to the H-1B and prevailing wage levels may never become law.

What it Means for Clients

We can expect to see a burst of changes to immigration policy in the coming weeks and months as the Biden Administration uses every tool at its disposal to unwind rules and regulations enacted during the Trump Administration. Generally speaking, those changes will ease regulations for individuals and employers, making it easier and faster to obtain visa and work permits.

Our immigration legal experts are continuing to follow the exact changes in law and policies that impact our clients. Should you have any questions about this article or any other aspect of immigration law, please do not hesitate to contact Brad Hendrick or Ashlyn Kahler-Rios.