First 100 Days of the Biden Administration on Immigration

Since coming into office, the Biden Administration has taken significant steps in tackling America’s broken immigration system, including overturning many of President Trump’s executive orders and proclamations on immigration. President Biden has stayed true to his promise to reform the immigration system, and the executive orders that he has issued within the first month of his presidency reflect that. Hopefully, further improvements to the current immigration landscape are at the forefront of his priorities. Although President Biden has issued a number of immigration-related executive orders, we have chosen to highlight only a few:

Ending Prohibition on Entry of Certain Immigrants into the United States
On February 24, 2021, President Biden issued a proclamation revoking former President Trump’s Temporary ban (Proclamation 10014) on the issuance of immigrant visas to most foreign nationals through consular processing at U.S. consulates abroad. President Biden’s proclamation goes in effect immediately. In practice, however, consulates are woefully backlogged so the scheduling of immigrant visa interviews will remain delayed. See more details below.

Southern Border and the Asylum System

On February 2, the White House issued an Executive Order (EO) on the Southern Border and the Asylum System. The EO implements a comprehensive three-part plan for safe, lawful, and orderly migration across the southern border, as well as to review the Migrant Protection Protocols program. The order also directs a series of actions to restore the U.S. asylum system. The EO requires inter-agency review of several U.S. border processing and asylum policies and also launches the creation of a national strategy to address the root causes of migration from Central America and a strategy to collaboratively manage migration with regional partners.

New Developments

While much of the EO directs agencies to begin a regulatory process and explore policy changes, there is one important area of immediate impact: it specifically ends the Prompt Asylum Claim Review (PACR) and Humanitarian Asylum Review Process (HARP) pilots. As noted in a January 25, 2021, Office of Inspector General report, the Trump Administration expanded these fast-tracked asylum review programs along the southern border, despite well-documented problems with their intent, design, and implementation. Pursuant to this EO, the President also directs the Secretary of State and the Secretary of Homeland Security to work together to expand lawful pathways for protection for individuals from Northern Triangle countries. The EO lists three specific immigration pathways for individuals from Northern Triangle countries (El Salvador, Guatemala, and Honduras). The first is identifying ways to offer protection within and in conjunction with the U.S. Refugee Admissions Program (USRAP). The second is the potential renewal of the Central American Minors (CAM) parole program. The third is the use of discretionary parole to permit beneficiaries of approved family-sponsored immigration visa petitions to join family members in the U.S.

Additionally, under the section header of “Restoring and Enhancing Asylum Processing at the Border,” the EO revokes other Trump Administration mandates relating to asylum processing, as well as any agency memoranda issued in furtherance of these policies, and the policies that concerned border wall construction and ending “catch and release.” The impact of these revocations remains to be further analyzed.

Establishment of Interagency Task Force on Reunification of Families

The White House issued an EO establishing a task force to reunite families that remain separated. The EO also revokes the Trump Administration’s EO that sought to justify separating children from their parents. The EO calls on the members of the taskforce – the Secretaries of DHS and HHS, the Attorney General, and other members – to identify all children who were separated from their families at the U.S.-Mexico border between January 20, 2017, and January 20, 2021, in connection with the operation of the zero-tolerance policy. The number is believed to be over 5,000, and until now reunification had been achieved only through litigation against the government and through the individual efforts of members of Congress. Some advocates feel that the creation of a task force will not go far enough. However, the task force’s progress report is due after 120 days, and the President can involve the government further at that time.

Promoting COVID-19 Safety in Domestic and International Travel

On January 21, President Biden issued an EO that, among other things, directed various government officials to assess the CDC order of January 12, 2021, requiring a negative COVID-19 test from airline passengers traveling to the United States, and to take “further appropriate regulatory action” to implement public health measures for international travel. Specifically, HHS had until February 3, 2021, to assess the January CDC order. As of late February, it remains unclear whether this assessment will result in an immediate change to current travel restrictions. Future “appropriate regulatory action” may include additional or other types of negative COVID-19 tests and a quarantine requirement upon arrival.

While it is still unclear what actions the Biden Administration will take on these travel restrictions, for now, if foreign nationals are is subject to one of those travel restrictions, they will continue to require a National Interest Exception (NIE).

Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting Coronavirus Disease

On January 25, President Biden issued a proclamation suspending and limiting the entry, with exceptions, of noncitizens who were present in the Schengen Area, the U.K., Ireland, and Brazil during the 14-day period preceding their entry or attempted entry. This was an extension of President Trump’s restrictions on entry to the U.S. The proclamation added the same restrictions to South Africa. The proclamation does not apply to U.S. citizens, and further exempts legal permanent residents (LPRs, or green card holders) as well as certain family members of U.S. citizens and LPRs. There are a few other, less common exemptions.

Ending Discriminatory Bans on Entry to the United States
President Biden issued a proclamation on January 20 revoking four separate executive orders and proclamations issued under President Trump between 2017 and 2020. The proclamation directs the Secretary of State to direct embassies and consulates, consistent with applicable law and visa processing procedures, including any related to COVID-19, to resume visa processing in a manner consistent with the revocation of the executive order and proclamations specified. The proclamations and orders that were revoked had the practical effect of banning travel to the U.S. of citizens of predominantly Muslim nations, as well as certain African nations.

The following are additional EOs issued by President Biden:

• Enhancing Refugee Resettlement Programs and Planning for the Impact of Climate Change on Migration – February 4, 2021. This EO revokes certain past presidential actions on refugee admissions and resettlement; directs government agencies to take steps to improve USRAP; to complete a review of Special Immigrant Visa programs; and to submit a report on climate change and its impact on migration.
• Restoring Faith in Our Immigration System and Promote Integration of New Americans – February 2, 2021. This EO requires agencies to conduct a top-to-bottom review of recent regulations, policies, and guidance that have set up barriers to the legal immigration system, and orders immediate review of agency actions on public charge inadmissibility.
• Revoking “Buy American and Hire American” EO – January 25, 2021. This EO revokes several previous executive orders, including “Buy American and Hire American.”
• Revoking Prior Presidential Actions Excluding Undocumented Immigrants from Apportionment Base Following the Decennial Census – January 20, 2021. This EO directs the Commerce Secretary to ensure that the apportionment base and state-level tabulations include all inhabitants without regard to immigration status.
• Revising Civil Immigration Enforcement Policies and Priorities – January 20, 2021. This EO directs the DOS Secretary, the Attorney General, the DHS Secretary, and other government officials to review any agency actions developed pursuant to EO 13768 and to take action, including issuing revised guidance, as appropriate and consistent with applicable law. See next article below.