02-05-2021
Starting about a week ago, the Biden Administration began actively and energetically advancing significant changes to the U.S. immigration system and, as of today, the administration shows no signs of slowing its momentum. So far, a slew of legislative proposals and executive orders have come from the Oval Office; these proposals and orders have been aimed at both reversing many of the previous administration’s policies and setting in motion a number of new policies that the Biden Administration hopes will reform the U.S. immigration system over the next four-to-eight years. This article will conclude the Biden Immigration Plan blog series and, in doing so, will cover a host of topics. This article will discuss the current political climate and partisan composition in Washington, DC, as well as the projected effects that these factors will have on the advancement of certain priorities of the Biden Administration. And, having progressed almost two weeks into the Biden Presidency, this article will also address a number of executive actions that have been taken to date, any significant actions that are likely to be taken in the upcoming months, and certain material changes that have occurred since the publication of the first two parts of this series.
I. The Current Political Climate
Following the conclusion of the 2020 regular election, Democrats in Congress had suffered several stinging defeats in the House of Representatives, despite keeping majority control of the House, but had begun to close the gap on the Republicans’ control of the Senate (following the 2020 regular election for the Senate, the Democrats held 48 seats and the Republicans held 50 seats). Both races for Georgia’s two Senate seats were deemed within an applicable margin of error and, as a result, both races were subjected to a special runoff election that concluded on January 5th, 2021. Following a bitter two month fight for this special election, both of Georgia’s Democratic candidates for Senate were announced as the winners of the special election; these two wins granted the Democratic Party exactly half of the seats in the Senate and, as a result of holding a tie-breaking vote in the Senate from Vice-President Kamala Harris, majority control of the chamber. The Democratic Party’s newly minted control of both the legislative and executive branches will undoubtedly be a tremendous boon to President Biden when attempting to enact his priorities. President Biden should have the ability to enact legislation without seeking compromise from the Republican members of Congress and he should be able to ignore many of the procedural hurdles that he would have faced from a divided government. From a practical standpoint, this will allow President Biden and the Democratic party to wield aggressive control of the legislative agenda, should they so choose, and will likely significantly reduce the amount of time it would take to pass bills if, in fact, the Democratic Party in Georgia had not flipped both Senate seats. This unified government, however, is subject to change; in 2022, the House and Senate will be subject to another election cycle and it is entirely possible that Democrats could lose seats in both the House and Senate and turn control over to the Republican Party. Democratic strategists are acutely aware of this possibility and, as a result, will be attempting to push as much legislation as possible through Congress prior to the next, upcoming election cycle. Most political analysts expect that many pieces of significant legislation will be passed over the next two years, subject to one hurdle: President Biden’s initial, and somewhat continued, insistence on expanding bipartisanship and reducing polarization in Congress. As long as President Biden seeks to expand bipartisanship he will likely be forced to slow the legislative process in order to negotiate deals that both parties support, and this may stymie aggressive legislative reform.
II. Current Executive Orders in Effect
Since President Biden’s first day in office, the Biden Administration has launched a headlong assault on the policies of the previous administration and has sought to aggressively pursue immigration reform. The following list of immigration related executive actions are chronological from their time of enactment, starting on January 20th, and this list is current through January 28th, 2021.
III. Future Legislative Reform
In addition to these executive actions, President Biden has sent his proposal for legislative reform of the U.S. immigration system to Congress, which consists of substantial changes to existing U.S. immigration law. The proposal, titled the U.S. Citizenship Act of 2021 (the “Proposed Act”) seeks to modernize and refocus the U.S. immigration system to be more humanitarian. Included in the Proposed Act is a provision called the NO BAN Act, which seeks to prohibit religion-based discrimination in immigration policy and limits the future power of the executive office to issue immigration bans. It also recharacterizes the language of immigration law, such as changing the term “alien” to “noncitizen.” The Proposed Act also introduces a system that will create a pathway to expedited citizenship for those living in the United States without legal status by granting applicable individuals with, first, temporary legal status then, second, permanent residency after five years, and, third, U.S. citizenship following eight years of U.S. residency and the completion of certain naturalization checks. Certain groups, such as DACA Dreamers, agricultural workers, and temporary protected status residents, would be granted immediate permanent residency. Additionally, the Proposed Act intends to reform the family-based immigration system by reducing the amount of administrative barriers to receiving a visa while increasing immigration caps per country. The Proposed Act also eliminates the one-year deadline for filing asylum requests. Finally, and more relevant to business-focused individuals, the Proposed Act intends to place a premium on immigration-related economic growth by 1) reducing employment visa backlogs, 2) reducing wait times, 3) eliminating visa caps, 4) providing the Department of Homeland Security with the ability to adjust visa acceptance on a macroeconomic scale for the purpose of reducing unfair competition to American workers, and 5) eliminating the ability for children of permanent residents to “age out” of immigration benefits received by their parents.
President Biden - without question - has the opportunity to force a legislative reform of the immigration system through Congressional action. The true extent to which President Biden and the Democratic Party seek to reform the immigration system, however, is unclear as President Biden may choose to take a more amiable approach with the Republican party. Nevertheless, we expect that the U.S. Citizenship Act of 2021 will be passed, in one form or another, by the end of 2021 with an effective date sometime in 2022.
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