How Will a Biden Presidency Affect Immigration?

How will a Biden Presidency affect my Immigration Case? That is a question that many immigrants are now asking themselves. Immigrant families have been monitoring the US elections with anxiety and are now hoping to see some positive changes in the way the US Government approaches immigration related issues. Although we are not going to know all changes until President Biden is sworn in and actually implements his policies, we can expect the following changes based on his prior announcements and based on how the Obama Administration handled its immigration policies. Below we discuss different areas of immigration law that we expect to change during a Biden Presidency.

Biden's Immigration Agenda is Expected to Include the Reinstatement of DACA

DACA Deferred Action for Childhood Arrivals

DACA was established by the Obama Administration and later rescinded by the Trump Administration. It has returned in a limited way through litigation that allowed prior recipients to renew their existing work permits, but it remains shut to new applicants. President- Elect Biden’s team has announced that they intend on reinstating DACA through executive action at the very beginning of his presidency, some suggesting as early as day one. This will allow new applicants to apply for the benefit that provides work permits to the undocumented residents that were brought to the United States as children. We are also hoping that travel permits for DACA recipients are also reinstated, allowing them to acquire legal entry and apply for permanent residence through processes like a Marriage Based Adjustment of Status.

They intend on reinstating DACA through executive action.

Muslim Ban

The Biden team has announced that it will immediately rescind the Trump executive orders collectively known as the Muslim Ban. At the very beginning of his Presidency, Donald Trump signed an Executive Order that prevented foreign nationals from seven majority Muslim countries from traveling to the USA for 90 days, suspended entry to the USA of all Syrian refugees, and prohibited any other refugees from coming into the country for 120 days. This initial ban has been revised and supplemented numerous times and is still in effect in one form or another. After Biden is sworn in, any cases that are currently on hold, not being adjudicated or could not be filed because of the ban, should be processed as previously.

100 Day Pause on Deportations

The Biden team has made previous statements about pausing current deportations for 100 days to determine a coherent policy as to what cases should move forward with deportation. We expect the Biden Administration to implement a priority removal policy similar to the Obama Administration where the deportation of violent criminals was prioritized. It remains to be seen what set of immigration policies the Biden administration will come up with during those 100 days.

Prosecutorial Discretion

Although no announcements have been made regarding Prosecutorial Discretion in removal proceedings, we expect the Biden Administration to return to using this form of case processing. Prosecutorial Discretion allows local immigration enforcement agencies and specifically the office of Chief Counsel to administratively close the deportation cases of worthy, non-criminal, undocumented residents. For example, under this policy, someone who was in the US undocumented, had strong ties to the community, had US citizen children and had a fairly clean background would be permitted to remain in the USA in a quasi status – not making them documented or legal, but allowing them to remain and in many cases request a work permit. Prosecutorial Discretion has been used many times to keep US Veterans, people with extensive families and hardships in the USA. The program helped keep families intact and avoided many unnecessary catastrophes. The Trump Administration rescinded this policy very early and we expect it to be reinstated at some point in the Biden Administration

Discretion in Adjudications

Similarly to Prosecutorial Discretion, prior to the Trump Administration, adjudicators with USCIS had significantly more leverage in using their discretion to approve or deny cases. Situations where certain facts or evidence were borderline, the immigration officer could decide in the applicant’s favor by looking at the whole picture and taking into consideration the applicant’s entire situation. Under the Trump administration, if a case can be denied, many if not most cases are in fact denied. We expect that under the Biden administration the leavay to adjudicate cases on the merits and the availability of discretion will return. This will allow applicants with more difficult cases to apply for an immigration benefit. For example, applicants that may have had small run ins with the law in the past, may have been advised not to file their naturalization cases – under the Biden administration those same applicants may be more likely to succeed with their petition.

Opportunity to Correct Filings

The Trump Administration has created policies that allow adjudicators at USCIS and other immigration offices to immediately deny cases even for the smallest of errors. In the past, if an application was missing a document or possibly had a question unanswered, the immigration officers would normally issue a Request for Evidence – or an RFE. We expect the Biden administration to return to the common use of Requests for Evidence to avoid needless denials.

Comprehensive Immigration Reform

American presidents and politicians have been speaking of and proposing comprehensive immigration reform for decades. Many of the proposals have even included legalization or even paths to citizenship for those that have entered the US illegally. However, these proposals have failed to get passed due a variety of political reasons. At the time of this post being written, it appears that the Biden Administration will likely have a divided government and as such, comprehensive immigration reform is highly unlikely to take place.

Please note that none of the above information is policy, and may not ever be implemented by the Biden Administration. It is simply an analysis of some of the changes we may expect in the future. Nothing in this article should be taken as legal advice.

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