Originally posted on 20 January 2021

Significant changes and improvements to the U.S. immigration system have been promised within the first 100 days of Joe Biden’s presidency. To help keep you informed on the latest U.S. immigration policy news, this article will be regularly updated as we receive further updates.

January 20, 2021 (Day 1)

On his first day in office, President Joe Biden signed 17 executive orders to address the notable issues surrounding the federal response to the COVID-19 global pandemic, climate change and immigration.

• As anticipated and discussed in our Biden campaign’s immigration plan article, the Biden administration revoked Trump administration travel bans that impacted individuals from primarily Muslim countries and several countries in Africa. Biden’s Proclamation directed the resumption of visa processing and clearing of backlogs created by Trump’s executive actions by: (1) requiring the Secretary of State to develop a plan within the first 45 days to reconsider visa denials, clear waiver requests and re-evaluate visa application fees while ensuring those that have been denied a visa that wish to re-apply are not prejudiced by the initial decision; and (2) requiring the Secretary of State and Secretary of Homeland Security, in consultation with the Director of National Intelligence, to develop a report within the first 120 days on current screening and vetting procedures for entry of immigrant and nonimmigrant individuals to the U.S. and provide recommendations on improvements of screening and vetting procedures and international information sharing.
• President Biden halted the construction of a border wall between the U.S. and Mexico, as well as terminating Proclamation 9844 of February 15, 2019, which has allowed the Trump administration to treat the construction of the wall as a national emergency, redirecting funds towards its construction. The Biden administration calls for the Secretary of Defense and the Secretary of Homeland Security, in coordination with the heads of appropriate executive departments and agencies, to work on redirecting previously allocated funds towards the construction of the wall.
• The Biden administration directed the Secretary of Homeland Security, in consultation with the Attorney General, to take all appropriate actions to “preserve and fortify” the Deferred Action for Childhood Arrivals (DACA) program.
• An executive order was issued to reinstate the Deferred Enforced Departure for Liberians until June 30, 2022, easing the worry for many families about returning to Liberia after years of working and living in the U.S.
• After the long-standing debates and legal court battles, the Biden administration issued an executive order that directs the appropriate agencies involved to base reappointment of Representatives following the decennial census on the total number of persons residing in each state, “without regard for immigration status.” Grounding the argument in the constitutional and legal requirements of the U.S. Census gathering, the executive order called for the Secretary of Commerce to ensure accurate and law-abiding count of U.S. constituents.
• In an executive order, the Biden administration pledged to “reset the policies and practices for enforcing civil immigration laws to alight enforcement” with its values and priorities.

That same day, the Department of Homeland Security (DHS) announced the suspension of new enrollments in the Migrant Protection Protocols (MPP), which have forced many asylum seekers and migrants fleeing prosecution in their home country to wait for a decision on their migrant case outside the U.S. As of January 21, 2021 no new individuals have been added into the program and current MPP participants should remain in Mexico pending further information and announcements. Lastly, DHS published a memorandum that directs the agency to conduct a review of policies and practices concerning immigration enforcement. For further information, please read here.

January 25, 2021 (Day 6)

In an effort to combat the COVID-19 global pandemic, the Biden administration issued a new travel ban proclamation that extended the ban on non-immigrant travelers from Brazil, the United Kingdom, Ireland and 26 other European countries, effectively extending the proclamation signed by his predecessor.

January 25, 2021 (Day 6)

The Biden administration rescinded the Buy American Hire American Executive Order, otherwise known as ‘BAHA’, which had been implemented by the previous administration in an effort to boost American employment and manufacturing. In practice, the executive order led to a host of new policies, such as the recission of USCIS’s deference policy regarding extension applications, which contributed to a more restrictive climate overall. This action by President Biden represents a potential shift to a more open immigration climate.

February 3, 2021 (Day 15)

USCIS issued a new Policy Memorandum, thus revoking President Trump’s 2017 Computer Programmer Policy Memorandum which had rejected the categorization of computer programmers as a specialty occupation. The 2017 memorandum, itself a revocation of a December 22, 2000 USCIS memorandum on computer-related positions, had given rise to an increase in Requests for Evidence (RFEs) and denials shortly after it was implemented. The Biden administration’s memorandum follows a December 2020 decision by the Ninth Circuit which found that the 2017 decision by USCIS to exclude computer programmers from the specialty occupation category was “arbitrary and capricious”.

February 24, 2021 (Day 36)

In a significant move, President Biden issued a revocation of Proclamation 10014, which was issued by the previous administration in an effort to prevent immigrants “who present a risk to the United States Labor Market” from entering the country in light of the COVID-19 outbreak. According to the Biden administration, this action by President Trump: (1) prevented family members of citizens and lawful permanent residents from entering the US; (2) harmed US industries by stymieing the global talent pool; and (3) prevented those selected for the Fiscal Year 2020 Diversity Visa Lottery from applying for and/or receiving immigrant visas. President Biden states in the proclamation that these individuals were forced to forfeit opportunities to “realize their dreams in the United States” and that the entry of these individuals into the country “is not detrimental to the interests of the United States”.

March 9, 2021 (Day 49)

USCIS stopped applying the Public Charge Final Rule to all petitions and applications which previously would have been subject to the rule as ordered by the Trump administration in 2019. This announcement by the Secretary of the Department of Homeland Security came as the Department of Justice dropped appeals in the Supreme Court and Seventh Circuit which had prevented the revocation of the Public Charge rule, as decided by the Northern District of Illinois. Applicants will no longer have to provide evidence solely required by the Public Charge rule, such as documentation of self-sufficiency or information about their receipt of public benefits. Evidence that has already been provided related to the Public Charge rule will be disregarded going forward.

March 31, 2021 (Day 71)

Presidential Proclamation 10052, which suspended H-1B, H-2B, J, and L visa holders from entering the U.S., expired on March 31, 2021 without renewal by President Biden. Visa applicants whose applications were refused due to implications of Presidential Proclamation 10052 can submit new applications, and those waiting for interviews will now be prioritized. President Trump had issued the proclamation on June 22, 2020 with the ban originally set to expire on December 31, 2020. The Trump administration subsequently extended the order for another three months, as President Trump argued the order would ensure that U.S. workers were protected during the COVID-19 economic recovery from competition with temporary workers and their families.

April 8, 2021 (Day 79)

The Secretary of State determined that exceptions to the geographic COVID Presidential Proclamations (9984, 9992, and 10143) may be granted for immigrant or fiancé(e) visa holders, for certain pilots and aircrew traveling to the United States, and certain exchange visitors. As discussed above, these proclamations restrict the travel to the US of individuals who had been physically present in China, Iran, the Schengen EU, United Kingdom, Ireland, Brazil, or South Africa within a 14-day period prior to their date of intended entry. As the travel bans now do not apply to applicants for immigrant or fiancé(e) visas,  applicants present in the countries mentioned above should review the website of the nearest embassy or consulate which processes immigrant visas to verify which visa services are currently available, as appointment availability and processing capacity at each embassy or consulate is dependent on local circumstances.

April 27, 2021 (Day 98)

USCIS has clarified that its officers will again give deference to prior petition determinations when adjudicating extension requests which involve the same parties and facts, provided there have been no material errors or changes in circumstance which affect visa eligibility. USCIS has also affirmed that it considers, but does not defer to, previous eligibility determinations on petitions or applications made by other US government agencies.

This guidance represents the reinstation of principles from USCIS’s 2004 adjudication policy. The guidance rescinds a 2017 policy memo issued under the Trump administration which restricted USCIS officers from giving deference to previously approved petitions, regardless of whether the material circumstances remained the same across both petitions. The reinstatement of the 2004 adjudication policy may reduce the number of RFEs issued on petitions and may reduce processing times for petition extensions.

We expect that the Biden administration will continue to pursue both policy and legislative updates on immigration and, although our 100 days article is now concluded, we will continue to provide further information on relevant updates as they become available. For further information on changes to U.S. or UK immigration law, see our website, or contact your assigned LDI lawyer or enquiries@lauradevine.com.