On January 20, 2021, Joe Biden was sworn in as the 46th President of the United States of America. On the first day of his presidency, he issued and signed a series of executive orders, memoranda, and proclamations, many of which deal with U.S. immigration policy. So what changes can individuals who are looking to immigrate to the USA expect, and what new opportunities can those who are already in the USA illegally benefit from in order to legalize and adjust their status in the USA?
Thus far, there have been no major changes affecting H and L visa applicants who are currently subject to Presidential Proclamations P.P. 9993 and P.P. 10052, which limit the issuance of new work visas. Information on exceptions to the H and L visa restrictions is available in a separate article. The President also has no foreseeable plans to lift restrictions on travel to the USA for tourism and business purposes, which means that most non-immigrant visa holders will still need to apply for a National Interest Exception (NIE).
The greatest changes, however, still lie ahead for individuals who are in the USA illegally, who will likely get a chance to legalize their immigration status under the new administration. Similar plans calling for amnesty for undocumented immigrants have already been contemplated in the past, however, it is reasonable to assume that the changes that are being considered by the current administration will bring to fruition the desired effect and provide new opportunities for the millions of people who currently live and work in the USA without lawful status.
ADJUSTMENT OF STATUS FOR UNDOCUMENTED IMMIGRANTS
The eight-year path to citizenship for undocumented immigrants is by far the boldest permanent solution proposed by the Biden administration. The program, if enacted, would cover approximately 11 million individuals currently living in the USA without lawful immigration status.
The new bill would provide a pathway for undocumented immigrants to obtain permanent residency after five years in the USA, after which they could apply for citizenship after another three years of residency. If enacted, the legislation would only apply to those individuals who entered the USA before January 1, 2021. For certain groups, such as agricultural workers, DACA program recipients, and individuals who have fled to the USA to escape war or natural disasters, this timeline would be shortened, provided that the individuals met other conditions such as currently working or being enrolled in school in the U.S. This path to residency would also be contingent on paying any outstanding obligations to the state, filing taxes, and meeting other basic requirements.
DACA
The “Deferred Action for Childhood Arrivals” (DACA) program created by President Obama will be preserved and maintained under the new administration, with the possibility of adjusting status for individuals who came to the USA as minors. DACA was created in 2012 for undocumented individuals living in the USA who came to the country as children, stayed and attended school here, but who are otherwise unable to legalize their immigration status. Current U.S. immigration law under the Immigration and Nationality Act does not provide a pathway for adjustment of immigration status for such individuals, even though the majority of DACA recipients came to the USA at a very young age and now consider this country to be their homeland.
The current administration plans to legalize the status of current DACA and DACA-eligible immigrants to that of permanent U.S. residents and provide them with a pathway to citizenship.
SUSPENSION OF DEPORTATIONS
One of the executive orders Biden signed on his first day has put a temporary pause on deportations of individuals with no lawful status in the USA. At this time, there is no information on how exactly the situation will develop. In the near future, the newly appointed Secretary of the Department of Homeland Security (DHS) will likely come forward with a solution that will determine whether individuals without legal status will be allowed to remain in the USA or not.
REFUGEES AND ASYLUM
The new administration also plans to raise the limit on the number of individuals admitted to the USA as refugees from 15,000 to 125,000 per year. Additionally, applying for asylum will be made easier by simplifying the process and lowering asylum requirements, as well as by lifting many of the current restrictions. The new regulations will be paired with increased security precautions at borders, airports and other checkpoints to ensure safety.
Jarosław Kurpiejewski
Attorney at Law licensed in Poland. Senior Associate in Ilasz & Associates Law Firm in New York. Specializes in private international law, civil litigation and immigration law.
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