Has the Biden-Harris Administration Enabled an Immigration Reset?

In November 2020, I published the first in a 4-part series of posts titled “Biden-Harris Offers a Chance for an Immigration Reset”. My third post in the series was published on President Biden’s Inauguration Day, and I posted again two and a half weeks later.

Nine months later, what has President Biden done to reform U.S. immigration policy? Has “Biden-Harris” delivered on my hopes for an “immigration reset”?

Let’s go back to the premise of my posts – that a Biden-Harris administration should provide a welcome opportunity 1) to reverse the erosion of trust between U.S. Citizenship and Immigration Services (USCIS) and the public and 2) to reestablish America’s global competitiveness by embracing, not rejecting, its immigrant population.

I noted that in November, 2020, the American Immigration Lawyers Association (AILA) identified the many aspects of the U.S. immigration system that a new administration could begin to correct. Of AILA’s proposals, I believe the ones most relevant to our firm’s business and family immigration clients are:

  • Tone
  • Mission
  • Efficiency
  • Consistency
  • Competitiveness
1. Resetting the Tone on Immigration

The previous administration aggressively changed the tone of U.S. immigration policy, away from social and economic development and toward law enforcement. At the same time, the administration’s implementation of policy was chaotic. It resulted in incoherent, inefficient, and irresponsible practices that were devastating for American businesses and families.

In immigration adjudications, in which officers enjoy considerable discretion in reviewing petitions and applications, the domino effect of an unwelcoming tone at the top can be catastrophic. It can keep a family from being reunited with parents, a company from making a scientific breakthrough, or a rural hospital from having one more physician on staff to tackle a pandemic.

Even pre-pandemic, immigration restrictions dramatically reduced student interest in U.S. universities. In the short-term, this drop had a significant economic impact (international students contributed $45 billion to the U.S. economy in 2018, according to the U.S. Department of Commerce). In the long-term, this decline will diminish the skilled labor pool on which American businesses rely.

Inscribed on the base of the Statue of Liberty, which has been a beacon of hope for dreamers around the world since it was installed in New York Harbor in 1886, is a phrase written by the American poet Emma Lazarus in 1883 (and affixed to the statue on a bronze plaque in 1903):

Give me your tired, your poor, your huddled masses yearning to breathe free, the wretched refuse of your teeming shore.

The notion of “making America great again” (you get the reference, I’m sure) assumes that America has fallen off the pedestal, and the immigration policies and practices that arise out of that philosophy take for granted that America’s decline is because of immigrants. Nothing could be farther from the truth.

One important immigration policy goal of the Biden-Harris administration has been to reset the tone of the country’s immigration policy, reminding Americans of the tremendous contributions immigrants have made over the centuries, and reassuring the world that American education and business welcome foreign-born contributions to our nation’s growth.

Since 2000, 40% of Nobel Prizes in chemistry, medicine and physics were awarded to U.S. immigrants. In the business sector, 55% of start-up companies worth over $1 billion were founded or co-founded by an immigrant, and 23% had a founder or co-founder who first came to the United States as an international student. The value contributed by immigrants to this country since 1776 has been relentless and is immeasurable.

In his first month in office, President Biden quickly began changing the tone of America’s conversation – both domestically and overseas – on immigration, signing three executive orders on immigration. The first aims to reunite migrant parents who were separated from their children at the border. The second seeks to grasp the root causes of migration at the southern border from Central American nations. The third executive order requires government agencies “to conduct a top-to-bottom review of recent regulations, policies, and guidance that have set up barriers to or our legal immigration system.”

2. On a Mission

Last December, I wrote that a second priority for the incoming administration should be a “re-revision” of the USCIS mission statement, which had been revised to remove reference to the United States as a “nation of immigrants”. The mission statement has not been changed back to the previous version, possibly because the agency faces greater challenges.

But in July, the Biden administration released a plan to reform the immigration system in a way that would secure the border, fairly and efficiently consider asylum claims, strengthen regional migration management efforts in North and Central America, and address the root causes of migration from Central America.

Among the measures being implemented are improved use of existing resources, including border management technologies; further improving the efficiency and fairness of the U.S. asylum system by empowering asylum officers to adjudicate asylum claims; providing funding to ensure that families and vulnerable individuals have access to legal representation; and reducing immigration court backlogs by ensuring priority cases are considered in a timely manner and hiring more immigration judges.

On September 30, Secretary of Homeland Security Alejandro Mayorkas announced new “Guidelines for the Enforcement of Civil Immigration Law” that aim to “better focus the Department’s resources on the apprehension and removal of noncitizens who are a threat to our national security, public safety, and border security and advance the interests of justice by ensuring a case-by-case assessment of whether an individual poses a threat.”

Secretary Mayorkas said, “For the first time, our guidelines will, in the pursuit of public safety, require an assessment of the individual and take into account the totality of the facts and circumstances. In exercising this discretion, we are guided by the knowledge that there are individuals in our country who have been here for generations and contributed to our country’s well-being, including those who have been on the frontline in the battle against COVID, lead congregations of faith, and teach our children. As we strive to provide them with a path to status, we will not work in conflict by spending resources seeking to remove those who do not pose a threat and, in fact, make our nation stronger.”

The issuance of the new Guidelines is a recognition that the majority of the more than 11 million undocumented or otherwise removable noncitizens in the United States have been contributing members of our communities across the country for years.

As I noted in an earlier post, the appointment of Secretary Mayorkas by President Biden sent a strong signal that the current administration intends to redirect USCIS toward its former mission by humanizing the agency and mending bridges with its constituents. An experienced technocrat, Mayorkas served the DHS as the Deputy Secretary and the Director of the USCIS during the Obama administration. That Mayorkas is himself an immigrant is a bonus.

3. From Political Expediency to Administrative Efficiency

The appointment of Secretary Mayorkas to lead the Department of Homeland Security (DHS) was an important step in steering the agency back to its mission, and businesses and families are benefiting from moves to overturn executive orders and regulations designed by the Trump administration to prevent American companies from hiring and retaining foreign-born employees.

In February, I wrote I believe that to make up for lost ground, new leadership at DHS and its partner agency, the U.S. Department of State (DOS), must work to reinstate past practices and introduce new procedures that alleviate workload, expedite processing, and eliminate backlogs. I outlined four recommendations that are the easiest to implement and would provide immediate and meaningful relief:

  • Reinstate Deference for Prior Approvals
  • Eliminate Mandatory Interviews for Employment-Based Permanent Residence
  • Eliminate the Need to Obtain ADIT Stamps at Field Offices
  • Reinstate Stateside Visa Revalidation

So how is the Biden administration doing?

Reinstate Deference for Prior Approvals

Deference is a bedrock principle of the American legal system. It refers to the respect given to a prior decision on the premise that the adjudicator must have made a sound decision after carefully considering all the relevant evidence. It also fosters efficiency by saving a reexamination of those same aspects that have previously been scrutinized and laid to rest.

As above, in July, Secretary Mayorkas announced the reinstatement of the deference principle, requiring an assessment of the individual and taking into account the totality of the facts and circumstances.

Eliminate Mandatory Interviews for Employment-Based Permanent Residence

Employment-based permanent residence incorporates thorough vetting, after which – for successful applicants – the USCIS approved permanent residence applications and mailed ‘green cards’ to sponsored workers’ home addresses. In October 2017, the USCIS began requiring mandatory in-person interviews for all employment-based permanent residence cases at local USCIS field offices.

The value of in-person interviews in marriage-based permanent residence cases is understandable. It arguably provides adjudicators the opportunity to gauge truthfulness in responses and assess whether relationships are bona fide. Given the extensive vetting that already occurs at each level of the employment-based permanent residence process, however, for employment-based cases, mandatory in-person interviews just add extra work and significant delays in the issuance of green cards.

The mandatory interview requirement in the employment context overwhelmed USCIS field offices, both in terms of volume and subject matter. Previously, field office adjudicators focused on family-based matters because employment-based matters were adjudicated at the USCIS’s Nebraska Service Center. The requirement for employment-based interviews compelled field officers to grasp the nuances of business immigration, request applicants’ files from archives, review relevant files, schedule applicant interviews, and only then make decisions on those cases. This deluge of extra work was in addition to their existing family immigration caseloads. The effect of this policy change was that the processing times for both family and business immigration cases ballooned.

There is evidence that the Biden administration is rolling back the requirement for mandatory interviews in the employment context, but progress has been slow, and the pandemic has not helped USCIS as it works to reduce the backlog of applications.

Eliminate the Need to Obtain ADIT Stamps at Field Offices

The pandemic and four years of ineffective leadership created an enormous backlog of visa applications and renewals that President Biden and Secretary Mayorkas are addressing.

Historically, when green card holders applied to renew their conditional or permanent resident status, the USCIS issued receipt notices or affixed stickers that automatically extended the underlying status for a period of one year, giving the agency the time needed to approve or deny those cases. In uncommon circumstances in which the USCIS had not approved or denied pending cases within that time, green card holders could obtain ADIT stamps at local field offices as proof of their status for employment verification and/or for reentry into the U.S. following international travel.

With extended wait times resulting from backlogs and misallocation of resources, the receipt notices and stickers that extend applicants’ status for 12 or even 18 months proved insufficient. Applicants have had to routinely schedule appointments at USCIS field offices to obtain these ADIT stamps as proof of their status while their cases have been in the queue for more than 18 months. This inefficiency was exacerbated by and exposed during the pandemic, as many USCIS field offices remained closed to the public from March through August 2020 and applicants saw their employment authorizations expire.

This lapse in status, and the resulting scramble for appointments for ADIT stamps at USCIS field offices, was avoidable through an easy fix. In February I wrote that USCIS could begin to issue receipt notices specifying that the mere filing of the extensions automatically extend the underlying conditional or permanent resident status until the USCIS makes decisions on such cases.

Under Secretary Mayorkas, this has begun to happen albeit again, slowly.

Reinstate Stateside Visa Revalidation

As a partner agency to DHS, DOS is responsible for assessing eligibility for particular visa categories for foreign nationals outside the U.S. Strictly speaking, a “visa” refers only to the visa foil that is affixed in an individual’s passport by a consular post, which is part of the DOS. A visa foil is a permission to enter the U.S. within a given window of time.

Once the individual is lawfully admitted into the U.S. within that window upon showing the visa valid foil and supporting documents to the U.S. Customs and Border Protection (CBP) officer at a port-of-entry or a border crossing, he or she holds “status” in the U.S. Status can be extended in the U.S. through applications and petitions approved by the USCIS even though the underlying visa foil may have expired after entry.

In order to be readmitted into the U.S. following international travel, the individual must reapply for the visa foil at a consular post outside the U.S. Requiring visa applicants to leave the U.S. to reapply for visa foils at consular posts is cumbersome in the best of times and outright cruel in a world struggling to recover from a raging pandemic.

Prior to October 2004, the DOS permitted eligible foreign nationals to request renewals of their visa foils without having to depart the U.S. In a process known as visa revalidation, applicants could mail in their passports and proof that they had continued to maintain their nonimmigrant status to a DOS office in the U.S. and obtain new visa foils. This process centralized and streamlined the issuance of visa foils for individuals who habitually resided and worked in the U.S. It also significantly lightened the burden on consular posts outside the U.S. from having to adjudicate visa applications for individuals who had typically traveled outside the U.S. simply to obtain new visa foils.

Stateside visa revalidation was discontinued in 2004 because the DOS found it “infeasible” to collect biometric identifiers for visa applicants in the U.S. In the 17 years since stateside visa revalidations were discontinued, the technology and the infrastructure to facilitate the capture of biometrics has evolved dramatically. The ease with which USCIS and DOS and their partner agencies can (and do) share digital data makes it even more manageable now to reintroduce stateside visa revalidation both securely and efficiently.

Any investments that the DOS would need to make in the U.S. for visa revalidations can be offset by the costs it would save at consular posts worldwide. The DOS already has a successful track record of creating a similar office – the National Visa Center (NVC) in Portsmouth, New Hampshire – for immigrant visa sponsors and applicants to channel the bulk of their filings through one office in the U.S. instead of at consular posts worldwide. This initiative not only makes fiscal sense but is also an essential part of a robust and consistent system that can function during pandemics and other disasters.

In February, I wrote that the Biden administration should resume stateside visa revalidation, but thus far, there has been no discussion about doing so. This is unsurprising, given that the Biden Administration has been conserving its political capital for other agenda items.

4. The Administration is Making Steady Progress on Immigration, But It Takes Time to Turn a Supertanker

Many of President Biden’s early immigration actions have served to restore previously existing policies that were reversed by the previous administration.

Along the road to the top job at DHS, Secretary Mayorkas served as both Director of USCIS and Deputy Secretary of Homeland Security, appointed to both positions by President Obama. He’s not an outsider. He knows how the agency works, and agency veterans know him.

“Fundamentally, we are a nation of immigrants,” Mayorkas said in an interview with The Washington Post earlier this year. He added, “And we are a nation of laws.”

I am confident the Biden administration will continue to make steady progress toward returning the United States to its position as the beacon of hope described in 1883 by Emma Lazarus.

Read More

Immigration Law