Center for Migration Studies - February 2, 2021
President Joseph R. Biden Jr. set forth an ambitious immigration agenda in the early days of the Biden-Harris administration, committing both to reverse harmful policies implemented by the Trump administration and to revitalize the US immigration system more broadly. In his first 100 days in office, President Biden articulated his immigration and refugee protection goals and reversed many of his predecessor’s policies in a series of executive actions. He also raised the refugee admissions cap for FY 2021 and endorsed the US Citizenship Act of 2021, which would represent the most sweeping immigration reform legislation in decades and create the largest legalization program in US history. President Biden’s executive actions address the situation at the southern border, root causes of irregular migration from Central America, impacts of climate change on migration, COVID-19 travel restrictions, and fortification of existing legal immigration pathways, as well as commitments to create new ones.
President Biden has issued the following immigration-related Executive Orders (EOs) and administrative policy changes since his first day in office (Click the title below to jump to a description of each EO/policy change):
Proclamation on Ending Discriminatory Bans on Entry to The United States – January 20, 2021
Executive Order on the Revision of Civil Immigration Enforcement Policies and Priorities – January 20, 2021
Preserving and Fortifying Deferred Action for Childhood Arrivals (DACA) – January 20, 2021
Proclamation on the Termination Of Emergency With Respect To The Southern Border Of The United States And Redirection Of Funds Diverted To Border Wall Construction – January 20, 2021
Executive Order on Ensuring a Lawful and Accurate Enumeration and Apportionment Pursuant to the Decennial Census – January 20, 2021
Memorandum Reinstating Deferred Enforced Departure for Liberians – January 20, 2021
US Citizenship Act of 2021
DHS Statement on the Suspension of New Enrollments in the Migrant Protection Protocols Program – January 20, 2021
Proclamation on the Suspension of Entry as Immigrants and Non-Immigrants of Certain Additional Persons Who Pose a Risk of Transmitting Coronavirus Disease – January 25, 2021
Executive Order on Creating a Comprehensive Regional Framework to Address the Causes of Migration, to Manage Migration Throughout North and Central America, and to Provide Safe and Orderly Processing of Asylum Seekers at the United States Border – February 2, 2021
Executive Order on Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New American – February 2, 2021
Executive Order on the Establishment of Interagency Task Force on the Reunification of Families – February 2, 2021
Executive Order on Rebuilding and Enhancing Programs to Resettle Refugees and Planning for the Impact of Climate Change on Migration – February 4, 2021
Memorandum for the Secretary of State on the Emergency Presidential Determination on Refugee Admissions for Fiscal Year 2021 – April 16, 2021
A Proclamation on the Suspension of Entry as Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting Coronavirus Disease 2019 – April 30, 2021
Memorandum for the Secretary of State on the Emergency Presidential Determination on Refugee Admissions for Fiscal Year 2021 – May 3, 2021
Proclamation on Ending Discriminatory Bans on Entry to The United States – January 20, 2021
This proclamation lifts certain restrictions on immigrant visas for nationals of Burma, Eritrea, Iran, Venezuela, Kyrgyzstan, Libya, North Korea, Somalia, Sudan, Syria, Tanzania, and Yemen. US Embassies and Consulates in those countries can resume visa processing and must ensure that pending visa and waiver applications are not prejudiced by the previous bans.
From 2017-2020, former President Trump issued a series of travel bans preventing nationals of Muslim-majority and select African countries from entering the United States. President Biden rescinded the travel bans (Executive Order 13780, Proclamation 9645, Proclamation 9723, Proclamation 9983) effective immediately. In his proclamation, Biden characterized the travel bans as “a stain on our national conscience.”
The initial travel ban (Section 3 of the “Executive Order 13769”) suspended the issuance of visas to nationals from Iran, Iraq, Sudan, Syria, Libya, Somalia, and Yemen for 90 days. The ban drew sharp criticism because it targeted Muslim-majority countries, and led to protests at airports across the country and legal challenges. In subsequent versions of the travel ban, the Trump administration added non-Muslim-majority countries and extended the timeframe for the ban. In a 5-4 decision, the Supreme Court ultimately upheld (in Trump v. Hawaii) the third version of the travel ban, Presidential Proclamation 9645. The bans have halted the admissions of targeted groups and prevented families from reunifying or even from visiting one another. Muslim Americans and religious leaders of many faiths praised Biden for ending the ban.
Executive Order on the Revision of Civil Immigration Enforcement Policies and Priorities – January 20, 2021
This order revised immigration enforcement policies and priorities and rescinded the Trump administration Executive Order 13768, which called for the prompt removal of all undocumented immigrants living in the United States and withdrew federal funding from so-called sanctuary states. Biden’s executive order directs relevant federal agencies to issue new guidance about immigration enforcement priorities.
Former administrations prioritized removal of immigrants convicted of serious crimes, those who threatened national security, and recent border entrants. A 2019 analysis from the Transactional Records Access Clearinghouse (TRAC) at Syracuse University on Trump-era enforcement found that “despite rising numbers of individuals detained by Immigration and Customs Enforcement (ICE), fewer and fewer individuals who have committed and been convicted of serious crimes are among them.” The Trump administration’s enforcement priorities were so broad that they effectively set no priorities at all.
They also came at an enormous cost to mixed-status families; i.e., those with undocumented and US citizen members. Using data from the Center for Migration Studies (CMS), a Marshall Project report estimated that 909,000 mixed-status families would face financial hardship and risk falling into poverty if their undocumented breadwinners were deported. The costs of deportation to families include financial hardship and the trauma of their separation and division.
In response to Biden’s Executive Order, Acting Department of Homeland Security (DHS) Secretary David Pekoske immediately issued a memorandum directing DHS agencies to review enforcement policies and provide recommendations for revised policies within 100 days. The memorandum ordered a 100-day pause on the removal of noncitizens, with exceptions for noncitizens who pose a danger to national security; who were not in the United States before November 1, 2020; who voluntarily waive any rights to remain in the United States; and who the acting ICE Director determines must leave the country. The memorandum also established the following enforcement priorities:
Those who have engaged in or are suspected of terrorism or espionage, or whose arrest is otherwise necessary to protect national security;
Individuals apprehended at the border or ports of entry while attempting to unlawfully enter the United States on or after November 1, 2020; and
Individuals released from incarceration on or after January 20, 2021, who have been convicted of an aggravated felony and who pose a threat to public safety.
On January 26, 2021, Judge Drew Tipton of the US District Court of the Southern District of Texas granted a 14-day temporary restraining order blocking the 100-day pause on removals ordered in Pekoske’s memorandum. On February 23, 2021, Judge Tipton granted a preliminary injunction prohibiting the government from implementing the 100-day pause. The ruling, however, does not block the administration’s enforcement priorities.
According to a Washington Post report, ICE deportations fell to a record low in April 2021. ICE deported 2,962 people in April, the lowest monthly total on record and a 20 percent decline from March. If ICE deportation numbers continue at this pace, it may deport fewer than 100,000 people in 2021, the lowest number since the agency’s founding in 2003
Preserving and Fortifying Deferred Action for Childhood Arrivals (DACA) – January 20, 2021
This memorandum directs the DHS Secretary and Attorney General to take all actions necessary and consistent with applicable law to preserve and fortify the DACA program. DACA provides relief from deportation, work authorization, and advance parole for unauthorized immigrants who were brought to the United States as children. Established in June 2012, the program has more than 600,000 active recipients who are “deeply integrated in US communities and enjoy long standing connections to the United States, the country that most of them know as their only home.”
The Trump administration took several actions to dismantle the DACA program. It first announced that it would end the program in September 2017, and DHS stopped processing new applications. In June 2020, the US Supreme Court ruled that the administration’s attempt to terminate the program was unlawful. However, instead of resuming the program, former Acting DHS Secretary Chad Wolf issued a memorandum curtailing DACA and barring first-time applications. On November 14, 2020, a federal district court judge ruled that the memorandum was illegal because Wolf had been improperly appointed to his position and lacked the authority to issue the order. The judge ordered the administration to reinstate DACA in December 2020, after DHS did not take action to do so after his November ruling. The January 20, 2021 memorandum stated that: “DACA reflects a judgment that these immigrants should not be a priority for removal based on humanitarian concerns and other considerations, and that work authorization will enable them to support themselves and their families, and to contribute to our economy, while they remain.”
Proclamation on the Termination Of Emergency With Respect To The Southern Border Of The United States And Redirection Of Funds Diverted To Border Wall Construction – January 20, 2021
President Biden halted construction of the wall along the US-Mexico border and stated that funds for border wall construction would be reallocated following a review of construction contracts. In April 2021, the Department of Defense announced that it is coordinating with interagency partners to cancel border wall projects and contracts.
Throughout his presidency and the 2016 campaign, President Trump promised to build a wall spanning the US-Mexico border. He also promised that Mexico would pay for the wall. However, this did not occur, and work on the wall cost American taxpayers approximately $15 billion dollars. Moreover, a disagreement between Congress and the administration over funding for the wall triggered the longest government shutdown in US history.
In order to fund the wall without consent from Congress, Trump issued Proclamation 9844, “Declaring a National Emergency Concerning the Southern Border of the United States.” CMS raised questions about the need for a wall and the national security rationale for declaring an emergency. It found that the multiyear decline in US undocumented population had been driven by Mexican nationals returning to Mexico, and since 2010, about two-thirds of new arrivals into the US undocumented population had overstayed temporary visas, a practice the wall would do nothing to stop.
Border communities and environmentalists have called on Biden to take steps to remediate environmental and cultural destruction caused by construction of the wall. Hundreds of miles of borderlands, including sacred Native American sites and protected public lands, have been bulldozed, blasted, and parched over the past four years due to construction of the wall, with little environmental assessment or oversight. In April 2021, DHS announced plans for initial steps to correct the damage caused by wall construction. The agency will fix holes in the Rio Grande Valley Flood Barrier System and soil erosion over a 14-mile stretch of border wall in San Diego, California.
“Like every nation, the United States has a right and a duty to secure its borders and protect its people against threats,” Biden wrote in the proclamation. “But building a massive wall that spans the entire southern border is not a serious policy solution.”
Executive Order on Ensuring a Lawful and Accurate Enumeration and Apportionment Pursuant to the Decennial Census – January 20, 2021
President Biden reversed a Trump administration order issued in July 2020 that sought to exclude undocumented immigrants from the 2020 Census. Under the 14th Amendment of the US Constitution, the census counts the number of people in each state every 10 years. Between January 3 and January 10 following a census year, the president is required to submit a statement with census numbers to Congress, which Congress uses to apportion seats among the states for the House of Representatives.
Trump’s executive order stated his intentions to submit a reapportionment plan to Congress that would have excluded all undocumented immigrants in January 2021. Trump requested two sets of numbers: one set with the whole number of persons in each state and the other with the number of undocumented immigrants in each state, which would be subtracted from the whole number for the purposes of apportioning House seats by state. Experts say it is not possible to offer an accurate count in the way Trump requested.
The order seemed to be retaliatory towards sanctuary cities and states that disagreed with his immigration priorities. It provided that states adopting policies that encourage undocumented immigrants to enter the country and those that have a large population of undocumented immigrants should not be rewarded with greater representation in the House of Representatives.
In July 2020, 23 states, immigrant rights advocates, and other groups filed several lawsuits challenging Trump’s executive order in federal court, blocking the plan from going into effect. The Trump administration appealed those rulings to the US Supreme Court, which ruled in December 2020 that it was premature to consider the matter because states had not yet been injured. Biden’s executive order ensures that undocumented immigrants are included and states will not lose congressional representation or federal funding due to an incomplete census count.
Memorandum Reinstating Deferred Enforced Departure for Liberians – January 20, 2021
President Biden reinstated Deferred Enforced Departure (DED) for Liberians through June 30, 2022. The memorandum also restores DED for those who were previously protected before it expired on January 10, 2021. DED provides temporary protection against deportation and work authorization to nationals of designated countries authorized by the president at his discretion.
Certain Liberians were first offered Temporary Protected Status (TPS) by the George H.W. Bush administration because of the Liberian Civil War. Subsequent administrations extended TPS or DED to Liberians due to ongoing violence and later the Ebola crisis. The National Defense Authorization Act for Fiscal Year 2020 established the Liberian Refugee Immigration Fairness (LRIF) program. LRIF is the first US legalization program in many years. However, USCIS did not approve a single application in the first four months of the program, which was originally set to expire in December 2020. COVID-19 further slowed application processing. On December 27, 2020, President Trump signed into law the Consolidated Appropriations Act, which extended the deadline to apply for LRIF relief to December 20, 2021. Biden’s memorandum extending DED provides Liberians with protection against deportation and work authorization as they apply for permanent residence.
The memorandum also directs the DHS Secretary to ensure ease of application and timely adjudication of applications for LRIF benefits. In order to qualify for the LRIF program, applicants must: (1) properly complete a Form I-485 Application; (2) be a national of Liberia; (3) have been continuously physically present in the United States during the period between November 20, 2014 and the date they file a Form I-485 Application; and (4) have not been convicted of an aggravated felony, two or more crimes involving moral turpitude, or persecution of any person on account of race, religion, nationality, political opinion, or membership in a particular social group. CMS has estimated that potentially 10,000 Liberians are eligible for LRIF relief.
US Citizenship Act of 2021
On January 20, 2021, President Biden endorsed the US Citizenship Act of 2021 memorializing his commitment to modernize the US immigration system. On February 18, 2021, Senator Bob Menendez and Congresswoman Linda Sanchez introduced the bill. If passed by Congress, the bill would represent the most sweeping immigration reform package since 1990 and would create the largest legalization program in US history, including the Immigration Reform and Control Act of 1986. In particular, the Act would:
Provide an eight-year pathway to citizenship for approximately 11 million undocumented immigrants. Undocumented persons physically present in the United States on or before January 1, 2021 would be able to apply for temporary Lawful Prospective Immigrant (LPI) status immediately and permanent residence after five years. Immigrants who engaged in essential critical labor or services during the COVID-19 public health emergency, H-2A non-immigrants (temporary agricultural workers), and Temporary Protected Status (TPS) recipients would also be eligible for LPI status.
Reduce the residence requirement for naturalization from 5 years to 3 years for all lawful permanent residents.
Make noncitizens who entered the United States as children, including and DACA recipients, eligible for lawful permanent residence (LPR).
Make nationals of countries designated for Temporary Protected Status (TPS) or Deferred Enforcement Departure (DED) who have been continuously physically present in the United States since January 1, 2017 and were eligible for TPS or DED on that date, eligible for permanent residence.
Make workers who performed agricultural labor or services for at least 2,300 hours or 400 workdays, including seasonal or temporary work, for a five-year period immediately preceding the date they file their adjustment of status application, eligible for LPR status.
Eliminate bars that prohibit immigrants from returning to the United States for three years or 10 years if they lived without status in the United States for more than 180 days but less than one year or over one year, respectively.
Change the word “alien” to “noncitizen” in all immigration laws in an effort to recognize the United States as a nation of immigrants.
Reform family- and employment-based immigration by recapturing millions of previously unused visas to reduce green card backlogs and by eliminating per-country visa caps.
Expand eligibility for V visas, which allow certain immigrants to join their petitioning family members in the United States while they wait for their green cards to become available.
Provide immigration relief for permanent LGBTQ couples that cannot get married in their jurisdictions. Permanent partners would be considered equal to a married couple. Children of immigrant permanent partners would also be eligible for immigration relief.
Eliminate the one-year deadline for filing asylum applications in the United States and provide funding to reduce asylum application backlogs.
Expand refugee and asylum processing in the Western Hemisphere and provide resources to support and strengthen processing and resettlement capacity.
Establish the Central American Refugee Program, which would allow nationals of El Salvador, Honduras, Guatemala, or any other Central American country designated by the Secretary of State to apply for refugee resettlement.
Creates a Special Immigrant Status program for Syrians who worked for the United States government in Syria and for surviving spouses and children of US government employees abroad who worked for 15 years or were killed in the line of duty.
Creates the United States Citizenship and Integration Foundation and other immigrant integration initiatives that would promote expansion of citizenship preparation assistance for LPRs and naturalization applicants and provide grants to assist individuals who are eligible for LPI and LPR status.
Prohibit discrimination based on religion and limit presidential authority to issue discriminatory travel bans in the future.
Supplement existing border resources with technology and infrastructure to expedite screening, enhance the ability to process asylum seekers, and detect narcotics and other contraband.
Direct the DHS Secretary to establish programs that provide alternatives to detention.
Provide funding for training and continuing education for Border Patrol agents to promote safety and professionalism.
Create the Department of Homeland Security (DHS) Office of Professional Responsibility to investigate criminal and administrative misconduct by agents.
Seek to reduce immigration court backlogs, expand training for immigration judges, and improve technology for immigration courts.
Provide funding for legal orientation programs and counsel for children and vulnerable individuals.
Address underlying causes of migration by increasing assistance to El Salvador, Guatemala, and Honduras, and establishing processing centers throughout Central America for individuals that are eligible for lawful migration to the United States or other partner countries.
Reinstate the Central American Minors program, which would grant special immigrant status to certain Central American children who have a parent that is lawfully present in the US.
Create a Central American Family Reunification Parole Program to unite families with approved family-based petitions.
Increase the number of diversity visas from 55,000 to 80,000 and raise the cap on U visas (victims of certain crimes) from 10,000 to 30,000.
Provide dependents of H-1B visa holders (highly skilled workers) with work authorization and prevent their children from aging out of the system and being forced to leave the United States.
Provide that foreign graduates of US universities with advanced STEM degrees would not be subject to numerical visa limits.
Create a pilot program for regional economic development visas, which authorizes the DHS Secretary to allow admission of 10,000 additional immigrants per year whose employment is essential to economic development strategies of local communities.
Require DHS and the Department of Labor (DOL) to establish a commission of labor, employer, and civil rights organizations to make recommendations to improve the employment verification process.
Provide immigrant workers who suffer serious labor violations with greater access to U visa relief and protect workers who are victims of workplace retaliation from deportation to allow labor agencies to interview them and investigate their situations.
