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On January 20, 2021, President Joseph R. Biden Jr. quickly initiated a broad immigration reform agenda through a multi-pronged approach of issuing a series of executive orders on his first day in office, proposing comprehensive legislation to Congress, and freezing the “midnight regulations” of the prior administration to allow the new administration time to review last-minute regulatory changes.

Executive Orders Issued

From reversing the travel ban targeting primarily Muslim countries to ending “harsh and extreme immigration enforcement”, Biden issued a series of executive orders on his first day in office, reversing many of the prior administration’s immigration policies.

Biden’s Legislative Proposal for Employment-Based Immigration Reform

President Biden’s proposed legislation, the U.S. Citizenship Act of 2021, sets forth goals to “modernize[] our immigration system,” prioritize family unity, “grow[] our economy,” and “ensur[e] that the United States remains a refuge for those fleeing persecution.” The bill proposes changes to several areas of immigration: from employment- and family-based immigration to asylum and refugee protections.

In addition to eliminating green card quotas and proposing a path to citizenship for undocumented immigrants living in the United States who were brought to the U.S. as children, President Biden’s proposed legislation also targets improving efficiency and reducing lengthy backlogs for employment-based work visa programs. However, the legislative proposal does not address high-skilled worker visas (e.g., H-1Bs or L-1s) and would still need to be passed by both the U.S. House of Representatives and Senate before being signed into law.

Regulatory Freeze on “Midnight Regulations”

Also on January 20, in an effort to halt or delay the Trump Administration’s “midnight regulations,” President Biden’s administration issued a freeze memo to “pause any new regulations from moving forward and give the incoming administration an opportunity to review any regulations that the Trump administration tried to finalize in its last days.”

Trump’s last-minute “midnight regulations” included restrictions on high-skilled worker visas through changes to the H-1B lottery selection process, adjusting the U.S. Department of Labor’s prevailing wage requirements for H-1B visa holders to higher salary percentiles, and creating additional obligations for both employers that place visa workers at third-party client sites and on the end-client companies where those workers are placed.

President Biden exercised this authority under the oversight authority of the Congressional Review Act, which allows a president and congress to undo last-minute “midnight regulations” issued by a prior administration during a certain look-back period. For regulations that have not yet taken effect within 60 days of the election and pending rules not yet published in the Federal Register, prior to enacting any new regulatory activity, federal executive agencies are directed to confer with the director of the Office of Management and Budget. Additionally, all pending rules that had not yet been published in the Federal Register are withdrawn.

List of Biden’s Executive Actions

In addition to Biden’s Executive Order reforms to U.S. immigration policy, below is a chart showing all of the executive actions signed by President Biden on his first days in office, including changes to business immigration policy measures and other executive actions that have followed or are expected.

Subject Matter Type of Executive Action Date
Re-engagement with World Health Organization (WHO) End withdrawal process Jan. 20
Combating sexual orientation, gender identity discrimination Executive order Jan. 20
Creation of COVID-19 response coordinator position Executive order Jan. 20
Ending “harsh and extreme immigration enforcement” Executive order Jan. 20
Launching an initiative to advance racial equity Executive order Jan. 20
Requirement for ethics pledge for executive-branch personnel Executive order Jan. 20
Requirement for masks/distancing on all federal property and by federal workers Executive order Jan. 20
Reversing travel ban targeting primarily Muslim countries Executive order Jan. 20
Revoking certain executive orders concerning federal regulation Executive order Jan. 20
Revoking order that aims to exclude undocumented immigrants from the U.S. Census Executive order Jan. 20
Revoking permit for Keystone XL pipeline, pause energy leasing in ANWR Executive order Jan. 20
Extending protection from deportation for Liberians in U.S. Memorandum Jan. 20
Freezing any new or pending regulations Memorandum Jan. 20
Modernizing and improving regulatory review Memorandum Jan. 20
Preserving DACA Memorandum Jan. 20
Stopping border wall construction Proclamation Jan. 20
Asking agencies to extend eviction/foreclosure moratoriums Request Jan. 20
Asking Education Dept. to extend student-loan pause Request Jan. 20
Rejoining Paris climate agreement Sign an “instrument” Jan. 20
Supporting international response to COVID-19, “restore U.S. global leadership” Directive Jan. 21
COVID-19 vaccination campaign goals Directives Jan. 21
Establishing a COVID-19 Health Equity Task Force Executive order Jan. 21
Establishing COVID-19 Pandemic Testing Board Executive order Jan. 21
Improving collection/analysis of COVID-related data Executive order Jan. 21
Increasing access to COVID-19 treatments and clinical care Executive order Jan. 21
Invoking Defense Production Act to supply shortfalls in fight against COVID-19 Executive order Jan. 21
Issuing OSHA guidance for keeping workers safe from COVID-19 Executive order Jan. 21
Providing guidance on safely reopening schools Executive order Jan. 21
Requiring face masks at airports, other modes of transportation Executive order Jan. 21
Increasing FEMA reimbursement to states for National Guard, PPE Memorandum Jan. 21
Asking agencies to boost food aid, improve delivery of stimulus checks Executive order Jan. 22
Restoring collective bargaining power for federal workers Executive order Jan. 22
Repealing ban on transgender people serving openly in U.S. military Executive order Jan. 25
Tightening ‘Buy American’ rules in government procurement Executive order Jan. 25
Reinstating coronavirus travel restrictions on Brazil, most of Europe Proclamation Jan. 25
Ending Justice Department’s use of private prisons Executive order Jan. 26
Combating racism against Asian-Americans, Pacific Islanders Memorandum Jan. 26
Directing agencies to engage in consultations with tribal governments Memorandum Jan. 26
Directing HUD to address discriminatory housing practices Memorandum Jan. 26
Pausing new oil and gas leasing on U.S. lands/waters, elevate climate change as national-security, foreign-policy priority Executive order Jan. 27
Re-establishing President’s Council of Advisors on Science and Technology Executive order Jan. 27
Directing agencies to make decisions on best available science, evidence Memorandum Jan. 27
Reopening Obamacare marketplaces, lowering recent barriers to joining Medicaid Executive order Jan. 28
Lifting certain restrictions on abortion funding Memorandum Jan. 28
Keeping aluminum tariffs on U.A.E., removal of exemption from Trump administration Proclamation Feb. 1
Ending “Remain in Mexico” program, restoration of U.S. asylum system Executive order Feb. 2
Creation of task force to reunite migrant families separated at the U.S.-Mexico border Executive order Feb. 2
Implementing a roll back of the “public charge rule,” which imposes a wealth test on would-be immigrants Executive order Feb. 2
Retroactive reimbursement states fully for FEMA-eligible costs tied to COVID Memorandum Feb. 2

 

 

About the Author:

Angela Schulz is the Managing Attorney of The Law Offices of Angela C. Schulz, PLLC in North Carolina and corporate and business immigration law for small to mid-sized entities (SMEs), serving the international needs of clients with cross-border transactional and business immigration matters in a variety of industries, including technology, hospitality, pharmaceutical, healthcare, financial services, biotechnology, real estate, and energy infrastructure.

On Feb. 24, 2020, the U.S. Citizenship and Immigration Services (USCIS) implemented the Inadmissibility on Public Charge Grounds final rule nationwide. On January 27, 2020, the U.S. Supreme Court granted the Trump administration’s emergency request to start enforcing the immigration rule, a decision that nullified an order by a federal appeals court to block the immigration restrictions while litigation was ongoing.

The final USCIS rule is intended to enforce provisions of U.S. immigration law related to the public charge ground of inadmissibility by preventing immigrants from obtaining residency or admission to the U.S. if they use public-assistance programs or might use them in the future. 

USCIS has announced that it will apply the final rule to all applications and petitions postmarked (or, if applicable, submitted electronically) on or after that date and will reject any affected application or petition that does not adhere to the final rule, if postmarked on or after Feb. 24, 2020.  

Generally, under section 212(a)(4) of the Immigration and Nationality Act of 1952 (the “INA,” or referred to as “the Act”), as amended, 8 U.S.C. 1182(a)(4)), an immigrant who is likely to become a public charge at any time in the future is inadmissible and ineligible and, therefore, ineligible for admission or adjustment of status. The final rule clarifies the factors considered when determining whether someone is “likely at any time in the future to become a public charge”.

For those immigrants in the United States who (1) have a nonimmigrant visa and (2) seek to extend their stay in the same nonimmigrant classification or to change their status to a different nonimmigrant classification, the final rule also now requires those individuals to demonstrate, as a condition of approval, that since obtaining the status they seek to extend or change, the person has not received public benefits for more than a total of 12 months within any 36-month period. 

 

 

Statutory Basis for the USCIS Final Rule on Inadmissibility on Public Charge Grounds

Section 212(a)(4) of the INA (8 U.S.C. § 1182(a)(4)): “Any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible[…] In determining whether an alien is excludable under this paragraph, the consular officer or the Attorney General shall at a minimum consider the alien’s-(I) age;  (II) health; (III) family status; (IV) assets, resources, and financial status; and (V) education and skills . . . .”  

Section 213 of the INA (8 U.S.C. § 1183): “An alien inadmissible under [section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4)] may, if otherwise admissible, be admitted in the discretion of the Attorney General (subject to the affidavit of support requirement and attribution of sponsor’s income and resources under section 1183a of this title) upon the giving of a suitable and proper bond . . . .” 

Section 214(a)(1) of the INA (8 U.S.C. § 1184(a)(1)): “The admission to the United States of any alien as a nonimmigrant shall be for such time and under such conditions as the Attorney General may by regulations prescribe, including when he deems necessary the giving of a bond with sufficient surety in such sum and containing such conditions as the Attorney General shall prescribe, to insure that at the expiration of such time or upon failure to maintain the status under which he was admitted, or to maintain any status subsequently acquired under section 1258 of this title, such alien will depart from the United States.” 

Section 248(a) of the INA  (8 U.S.C. § 1258(a)): “The Secretary of Homeland Security may, under such conditions as he may prescribe, authorize a change from any nonimmigrant classification to any other nonimmigrant classification in the case of any alien lawfully admitted to the United States as a nonimmigrant who is continuing to maintain that status and who is not inadmissible under section 1182(a)(9)(B)(i) of this title (or whose inadmissibility under such section is waived under section 1182(a)(9)(B)(v) of this title) . . . .” 

8 U.S.C. § 1601(1): “Self-sufficiency has been a basic principle of United States immigration law since this country’s earliest immigration statutes.”  

8 U.S.C. § 1601(2)(A): “It continues to be the immigration policy of the United States that – aliens within the Nation’s borders not depend on public resources to meet their needs, but rather rely on their own capabilities and the resources of their families, their sponsors, and private organizations.”  

8 U.S.C. § 1601 (2)(B): It is also the immigration policy of the United States that “the availability of public benefits not constitute an incentive for immigration to the United States.”   

 

If you have questions regarding recent changes to income-based restrictions on immigration policy or your immigration status as a result of the Inadmissibility on Public Charge Grounds final rule, consider speaking with an attorney to review your individual situation. If you would like to schedule an initial consult regarding your immigration needs, call 704-755-5254 or send an email to info@acslawnc.com.

On May 31, 2019, the U.S. department of State updated its immigrant and nonimmigrant visa application forms to request additional information, including various social media identifiers, from most U.S. visa applicants worldwide. The U.S. Citizenship and Immigration Services (USCIS) now require social media information from all DS-160 applicants going back five (5) years for all social media accounts. The decision is the result of Executive Order 13780 from March 2017.Based on the language of the Department of State’s directives to the Consulates, the changes are applicable not just to popular social media apps like Facebook, but also information sharing platforms, such as Instagram, Twitter, YouTube, Skype, Reddit, Pinterest, Flickr, Messenger, Snapchat, Wechat, Tinder, Slack, LinkedIn, Kik, and Weibo. You can view the updated State Department guidance

here.

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Effective October 01, 2017, the USCIS announced that it would begin requiring in-person interviews for all employment-based I-485 applications and Refugee/asylee relative petitions. Previously, USCIS waived interviews for certain employment-based applicants, unless there were specific criminal inadmissibility, fraud, or national security concerns. The new policy eliminated interview waivers in all instances and has increased the workload of local USCIS offices, such as Charlotte and Raleigh by 90-95%. Click here to view the Executive Order.