THE FIRST 100 DAYS OF BIDEN ADMINISTRATION: ROUND UPREQUIREMENT FOR CERTAIN VISAS

THE FIRST 100 DAYS OF BIDEN ADMINISTRATION: ROUND UP

It has been over a 100 days since the historical election got over and the Biden administration has stepped in to handle the great United States of America. The new administrations actions and memorandums have been keenly scrutinized by various welfare organizations and watchdogs to see if they have made good of the pre-election promises.

While the debates and discussions regarding what all has been achieved and what remains is ongoing, the American Immigration Lawyers Association (AILA) has issued a set of recommendations: A Vision for America as a Welcoming Nation. The Biden Administration has been urged to being about reforms in 12 much needed and major areas.

The 12 key recommendation areas are:

Proclaim a Message of Welcome

Ensure Fairness, Efficiency, and Accountability in the Legal Immigration System

Restore Integrity, Fairness, and Efficiency to the Immigration Courts

Ensure the Fair and Humane Treatment of Migrants at the Border

Restore Asylum Law and Protection for Victims of Crime and Refugees

Guarantee Legal Assistance and Counsel

End Inhumane Detention

Set a Vision for Immigration Enforcement that is Fair, Humane, and Effective

Modernize CBP and Port of Entry Processing

Protect Undocumented People and Others with Deep Ties to America

Improve Employment-Based and Family-Based Immigration

Ensure the State Department (DOS) Is Properly Resourced to Provide Fair and Efficient Consular Processing

A brief consolidated report compiled by AILA on the actions of Biden Administration (Right column) on the above mentioned recommendations (Left Column) is listed below:

Proclaim a Message of Welcome

Terminate or rescind the Muslim ban.	The Muslim ban has been rescinded.
Terminate or rescind the refugee ban.	The refugee ban has been rescinded.
Terminate or rescind the asylum bans.	In progress
Terminate or rescind the pregnancy ban.	No Administrative action implemented so far
Terminate or rescind the health insurance ban.	No Administrative action implemented so far
Terminate or rescind the Public Charge Rule.	The Public Charge Rule has been rescinded.
Appoint diverse personnel to immigration agencies.	President Biden appointed several officials with diverse backgrounds, but many key leadership positions remain unfilled.
Review hiring practices to remedy improper or politically driven personnel decisions. Overhaul all training protocols at immigration agencies. Freeze hiring until training is implemented.	President Biden has requested funding to investigate concerns about white supremacy and ideological beliefs in ICE and CBP.
Reopen public engagement with AILA and others.	Various government agencies have initiated public stakeholder engagements, met with AILA committees and leadership, and attended the AILA National Spring Conference.
Repeal the presidential proclamations banning the lawful entry of foreign nationals to protect the labor market.	President Biden repealed the proclamation banning immigrants and allowed the nonimmigrant ban to expire.
Rescind or terminate the presidential proclamations banning entry of individuals who pose a risk to transmit COVID-19.	President Biden extended country-specific COVID-19 bans for the U.K., Ireland, the Schengen Area, China, and Brazil and established a new ban for South Africa. Temporary restrictions on travel from Canada and Mexico have been extended to May 21, 2021. DOS is also allowing certain students subject to regional COVID-19 bans with valid visas to travel to the United States without seeking an exemption.
Rescind the CDC Title 42 order which blocks and expels asylum seekers based on the pretext of COVID-19 protection.	No Administrative action implemented so far

Ensure Fairness, Efficiency, and Accountability in the Legal Immigration System

Reinstate the “deference” policy.	USCIS reinstated the 2004 policy to defer to prior determinations of eligibility when adjudicating an extension application and to consider decisions made by other agencies.
Eliminate mandatory interview requirements.	No Administrative action implemented so far
Ensure consistency in adjudications.	No Administrative action implemented so far
Stop the “blank space” rejection policy.	USCIS has agreed to stop the blank space rejection policy for certain application types and has permitted refiling of certain rejected I-485 applications.
Increase transparency on case processing times and backlog.	No Administrative action implemented so far
Forbid transfers of funds and personnel from USCIS to CBP or ICE.		No Administrative action implemented so far
Conduct a full review of the fraud unit.		No Administrative action implemented so far
Rescind the July 2018 Notice to Appear (NTA) guidance.		No Administrative action implemented so far
Restore opportunities for people to integrate and naturalize.		USCIS announced that it will revert to administering the 2008 civics test for certain applicants. President Biden’s budget requests resources to reduce naturalization backlogs. U.S. Citizenship Act has provisions to facilitate integration and naturalization.
Strengthen naturalization, parole, and other programs to assist members of the armed forces, veterans, and their families.		USCIS announced that it will offer video interviews and naturalization ceremonies for overseas processing of military members and their family members.
Reopen liaison channels and improve the InfoMod program.			No formal announcements have been made, but USCIS has been more responsive to liaison inquiries and providing case resolution. The CIS Ombudsman held stakeholder engagements to solicit feedback on the USCIS Customer Service tools and the Contact Center.
Restructure and empower the Customer Service Division.			No Administrative action implemented so far
Halt the USCIS fee rule, reinstate fee waivers, and maintain reasonable fees.				USCIS has agreed not to implement the regulatory changes set out in the final rule, keeping fee waivers and no fees for asylum applications in place. USCIS issued a notice seeking public input on how USCIS can make the immigration system more accessible.
Rescind the Public Charge Rule.				The Public Charge Rule has been rescinded.

Restore Integrity, Fairness, and Efficiency to the Immigration Courts

Urge Congress to create an Article I immigration court system independent from DOJ.	No Administrative action implemented so far
Implement new policies to restore judicial independence, fairness, and consistency to the immigration courts.	No Administrative action implemented so far
Install new leadership in key posts.	Jean King was named Acting Director of EOIR. No political appointments have been announced.
Address the Trump administration’s politicized hiring of immigration court judges and BIA members.	The Biden administration issued an executive order requiring agencies to remove barriers inhibiting “fair, efficient adjudications.” The president’s initial budget proposal calls for additional funding to hire more immigration judges.
Rescind Attorney General opinions, and policies that stripped immigration judges of authority to manage dockets and ensure due process (Matter of Castro-Tum, Matter of L-A-B-R-, and Matter of S-O-G-& F-D-B-).	None, though a proposed regulation that would have essentially eliminated administrative closure has been enjoined.
Rescind immigration judge case completion quotas.
Rescind problematic performance metrics and deadlines on the BIA and immigration court.	Many problematic policies remain in place. EOIR issued a new memo on case processing and rescinded a memo related to BIA filing deadlines. A federal court enjoined a regulation also related to BIA filing deadlines.
Rescind the EOIR rule imposing new deadlines on asylum applications.	None, though the rule is currently enjoined.
Rescind the “no dark courtroom policy.”	No Administrative action implemented so far
Provide notice of hearings in compliance with the Supreme Court’s decision Pereira v. Sessions. Review all in absentia removal orders to correct for government error.	No Administrative action implemented so far
Stop EOIR proposed rulemaking that would increase application fees.	None, though on 1/18/21, a federal court enjoined this rule.
Stop the use of “black box” IACs, which severely undermine due process.	No Administrative action implemented so far

Ensure the Fair and Humane Treatment of Migrants at the Border

Rescind the CDC Title 42 order that blocks and expels asylum seekers under the pretext of COVID-19 protection.	The Biden administration has not rescinded or addressed the Title 42 order. Mass expulsions continue to occur although the administration is no longer expelling unaccompanied children and some families.
Rescind the November 2018 asylum ban.	President Biden rescinded the proclamation that led to the asylum ban. The interim final rule remains in place but is under review.
Rescind the July 2019 third country asylum ban.	This ban is currently enjoined. The final rule remains in place but is under review.
Rescind the Migrant Protection Protocols (MPP).	Per Executive Order, a review of MPP was initiated, new enrollments suspended, and all future hearings canceled. Since February, the administration has paroled in some people subject to MPP. The majority of MPP cases are currently excluded from this initial phase of processing, including many Black immigrants who were never “eligible” for MPP enrollment.
Rescind the Asylum Cooperative Agreements with Guatemala, Honduras, and El Salvador.	DOS announced the suspension of and plans to terminate the Asylum Cooperative Agreements. The administration has signed agreements with Mexico, Guatemala, and Honduras to deploy the countries’ militaries to impede migration.
Rescind the Prompt Asylum Claim Review (PACR) and Humanitarian Asylum Review Process (HARP) programs.	On 2/2/21, the President rescinded these programs but has not revoked governing policy memoranda.
Establish an Office of Migrant Protection and scale-up of screening and protection capacity at high-volume ports of entry.	The administration scaled up capacity to address increased numbers of unaccompanied children seeking protection.
Authorize asylum officers to grant asylum as part of the credible fear process	The administration signaled that asylum reforms are under consideration.
Eliminate the Consequence Delivery System.	No progress.
Suspend prosecutions for illegal entry and reentry.	The administration rescinded the Zero Tolerance policy but has not addressed prosecutions for illegal entry or reentry.
Halt the practice of metering and practices restricting the number of asylum seekers at the border.	DHS is reassessing asylum processing at the border.
Halt the use of the fast-track expedited removal and reinstatement of removal procedures.	No progress.
Restore the practice of releasing recent border arrivals while immigration court proceedings are pending.	The administration has opted to forgo detention for most asylum seekers previously in MPP.
Rescind the Executive Order and halt all plans for a wall along the southern border.	President Biden issued a proclamation limiting the use of emergency funding for border wall construction. FY 2022 Biden Administration budget proposal contains no funding for border wall construction.

 

Asylum Law and Protection for Victims of Crime and Refugees

DOJ and DHS should reverse Trump-era policies that exclude victims of domestic violence, gang persecution, and other categories of people from protection.	DOJ and DHS are compiling a report and plan to issue joint regulations on the meaning of “particular social group” for asylum purposes.
Halt policies that establish extreme restrictions on asylum including the “death to asylum” regulation or the regulation justified on security bars.	The “death to asylum” rule is currently enjoined. The rule justified on security bars is currently delayed but the administration has reopened the comment period.
Address the ever-growing asylum backlog of cases before the USCIS Asylum Offices.	The president’s budget included discretionary funding to address the backlog.
Revoke the August 2019 ICE fact sheet permitting deportation of U visa applicants before USCIS determines prima facie eligibility. Restore the 2009 policy on U visas.	No Administrative action implemented so far
Reduce the U visa backlog by hiring additional adjudicators.	FY2022 budget includes a request for funding to modernize systems and operations.
Implement the statutorily authorized plan to issue work authorization to people who have filed U visa applications under INA §214(p)(6).	No Administrative action implemented so far
Create a parole program for U visa applicants abroad as required by 8 CFR §214.14(d)(2).	No progress.
Resettle at least 125,000 refugees in FY2021 and increase resettlement from Central and Southern America.	On 4/16, President Biden walked back his earlier pledge to increase refugee resettlement to 62,500 and lowered the figure to 15,000 for FY2021. The administration will revise the refugee cap by 5/15. The president revoked policies restricting refugee resettlement.
Restart the Central American Minors (CAM) program to parole children to reunite with parents in the U.S.	The administration announced plans to restart the CAM program.

Guarantee Legal Assistance and Counsel

Commit to providing every person facing removal with legal counsel paid for by the government if they cannot afford it.	The President’s bill authorizes the appointment of counsel at government expense. The President’s preliminary FY2022 budget mentions expanding access to counsel for children.
Reestablish the Office of Access to Justice to facilitate legal counsel and education programs.	No Administrative action implemented so far
Ensure detainees have expanded access to legal counsel, interpreters, and other members of their legal team.	The President’s bill requires DHS to ensure access to counsel for people in all detention facilities and border facilities.
Expand visitation policies by increasing private meeting space and video and telephone communications.	No Administrative action implemented so far
Expand and improve EOIR’s legal orientation programs (LOP), which the previous administration attempted to defund.	No Administrative action implemented so far

End Inhumane Detention

Reduce the average daily population of detained persons and funding for detention by 75 percent.	The President’s preliminary FY2022 budget did not address detention funding.
Establish a presumption of release and the use of least restrictive methods for individuals apprehended for immigration purposes.	The administration released temporary enforcement guidance which covers custody decisions but was silent on the standards for release from detention.
Expand nationwide the use of community-based management and supervision programs as alternatives to detention.	The administration’s preliminary FY2022 budget request includes funds for alternatives to detention and enhanced case management services but details are unclear.
End family detention and the separation of families.	The administration created a task force to reunite families separated under “Zero Tolerance.” Family detention rates are at low levels. Few families are entering the United States per the CDC’s Title 42 expulsion order. The administration has not announced a policy ending family detention.
Review all detention cases to determine whether detention is necessary and justified.	ICE created a Case Review process but has not affirmatively reviewed all pending detention cases.
Terminate all existing contracts with private prisons and county jails and place a moratorium on future contracts or expansions.	The President’s order for racial equity, which would terminate private prisons contracts, does not apply to private immigration detention.

Set a Vision for Immigration Enforcement that is Fair, Humane, and Effective

alt deportations until DHS reviews pending cases and establishes new enforcement priorities.	On 1/22/21, DHS paused removals of certain noncitizens ordered deported for 100 days. But four days later, a federal court enjoined the government from executing the pause on deportation. That injunction was extended indefinitely.
Establish clear enforcement priorities that give weight to the favorable equities in each person’s case.	On 1/20/21, DHS issued a memo on enforcement policies, and on 2/18/21, ICE issued a memo with interim guidance on enforcement priorities. ICE needs to give more clear direction to officers in the field and move away from unreliable and discredited approaches, such as defining public safety threat based on gang member identification.
Review pending cases to determine whether continued enforcement action is justified.	AILA members report that some offices are affirmatively reviewing cases, but this does not appear to be a nationwide effort or mandate. ICE did create a system to receive inquiries on cases.
Implement a robust procedure for the exercise of prosecutorial discretion.	DHS and ICE issued memos on enforcement priorities (See above). AILA members report inconsistent implementation of the memos and the outlined priorities.
Review detention, transfer, and deportation practices to prevent the spread of COVID-19.	None, but President Biden issued an Executive Order that directs government officials to assess a CDC order requiring a negative COVID-19 test from airline passengers traveling to the United States.
Halt ICE and CBP collaborations with local police that pressure local law enforcement to violate the law and the Constitution, and compromise public safety.	No Administrative action implemented so far
Set requirements that are consistent with law enforcement standards that protect the privacy of the public and officers.	No Administrative action implemented so far

Modernize CBP and Port of Entry Processing

Promote uniformity in adjudications at all ports of entry by publishing non-classified Adjudication Guidance Musters on its website.	No Administrative action implemented so far
Implement rigorous oversight and “guardrails” to ensure the work of the National Vetting Center and the use of biometrics is consistent with CBP’s mission. Publish all policy changes.	CBP reopened the comment period for the proposed rule revising DHS’s comprehensive biometric entry and exit system comment for 30 days.
Create a clear and centralized national system where travelers can request I-94 corrections.	No Administrative action implemented so far
Reestablish the practice of adjudicating reentry applications for L status at the northern border.	No Administrative action implemented so far
Properly resource CBP to maintain sufficient well-trained staff and provide more lanes at ports and increased hours of operation.	The president’s budget includes a request for funding to modernize land ports of entry and the U.S. Citizenship Act contains provisions to expedite trade and travel at ports of entry.

Protect Undocumented People and Others with Deep Ties to America

Reinstate DACA and make it fairer and more accessible.	President Biden committed to defending DACA and DHS announced that it will pursue regulations to fortify DACA. But it has not made any changes to the program. The president’s proposed bill would legalize DACA recipients and others.
Designate or renew TPS and DED designations for the following countries: El Salvador, Haiti, Honduras, Nepal, Nicaragua, Sudan, Sierra Leone, Guinea, Syria, Yemen, South Sudan, Somalia, Venezuela, the Bahamas, Guatemala, and Lebanon.	President Biden announced DED for Venezuela and renewed it for Liberia. The administration announced, extended, redesignated, or renewed TPS for Burma, Syria, and Venezuela.
Apply deferred action and humanitarian parole to protect military families, people with severe medical needs, victims of serious crime waiting for U visas, and others.	President Biden ordered a task force to explore granting humanitarian parole or other immigration benefits to those affected by the Zero Tolerance and family separation policies.

Improve Employment-Based and Family-Based Immigration

sure faster processing of work authorization. DHS should modernize and simplify the employment verification process.	USCIS extended flexibilities to applicants filing Form 1-765 for certain foreign students affected by delayed receipt notices and permitted F-1 students to apply for work authorization electronically. ICE also extended flexibility in processing Forms I-9 to waive physical inspection requirements of documents for remote workers, currently through May 31, 2021.
Revise regulations to allow for earlier filing of adjustment of status applications and to protect children from aging out of immigrant visa eligibility.	No administrative action, but the U.S. Citizenship Act addresses family and employment-based visa backlogs, per country visa limits, and the aging out of H-4 children.
Recapture unused visas through administrative means.	No administrative action, but the U.S. Citizenship Act addresses visa recapture.
Exempt derivates from numerical limits through administrative means.	No administrative action, but the U.S. Citizenship Act exempts spouses and children from numerical limits in family, employment, and diversity visa categories.
Ensure the prevailing wage system reflects real-world norms by retaining the 2009 prevailing wage guidance.	DOL delayed the effective date of a final rule significantly changing prevailing wage levels and seeks to further delay it until November 14, 2022. DOL has sought information from the public on how the system should be revised.
Expand the International Entrepreneur rule, admit L-1A managers and executives opening a new office for an initial period of two years, and expand use of the National Interest Waiver for entrepreneurs who will bolster the U.S. economy.	No Administrative action implemented so far
Ensure that H-1B adjudications are consistent with statute and regulations and halt or rescind H-1B regulations published in the fall of 2020.	The administration has rescinded the Buy American Hire American Executive Order and delayed the effective date of the DOL Prevailing Wage Rule and the DHS Wage Selection Rule to further review the policies in the regulations. DHS did not finalize the H-1B Strengthening Regulation and rescinded the H-1B computer programmer memo.
Ensure availability of visas and consistency in H-2B adjudications.	DHS announced a supplemental increase of 22,000 additional H-2B visas for FY2021, with 6,000 visas set aside for nationals of Guatemala, Honduras, and El Salvador.
Ensure that EB-5 policies are revised to allow flexibility to accommodate fluctuations in business operations and the economy, including elimination of the redeployment requirement.	No Administrative action implemented so far

Ensure the State Department (DOS) Is Properly Resourced to Provide Fair and Efficient Consular Processing

Elevate the position to be co-equal with other Deputy Assistant Secretary positions in the State Department.	No Administrative action implemented so far
To address pandemic-related backlogs, DOS should automatically extend the validity of expiring visas, permit visa revalidation from the United States, and protect LPRs from falling out of status because of travel restrictions.	DOS has temporarily expanded interview waiver eligibility for certain nonimmigrants whose visas expired within 48 months and extended the validity of visa fees until September 30, 2022 but has not implemented other streamlining recommendations.
Reinstate authority for consular officers to waive interviews for low-risk nonimmigrants to ensure efficiency.	DOS temporarily expanded interview waiver eligibility for nonimmigrants whose visas expired within 48 months. DOS is also allowing certain students subject to regional COVID-19 bans with valid visas to travel to the United States without seeking an exemption.
Establish policy for consular officers to articulate the reasons for visa denials.	No Administrative action implemented so far

(The above progress report table has been discussed and summarized by AILA, as available on their website on 05/05/2021, 9:01 AM)

Disclaimer

This article, under no circumstances, acts as legal advice; therefore, for any immigration questions, please contact your Attorney or the Ahluwalia Law Offices, P.C. (Team ALO).

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