What Steps Should Immigration Practitioners Take Now in Anticipation of a Biden Administration?
The Biden campaign listed a number of immigration-related priorities that his presidency would tackle if elected. Most of these could be accomplished through executive orders, regulations, or changes to policies and procedures rather than requiring legislation. His list included ending the “detrimental” asylum and border exclusion policies; reinstating the Deferred Action for Childhood Arrivals, or DACA, program; withdrawing the public charge rule; replacing prolonged detention with effective and less restrictive alternatives; protecting Temporary Protected Status, or TPS, and Deferred Enforced Departure, or DED, holders from being returned to countries that are unsafe; raising the annual refugee admission numbers; rescinding the Muslim travel bans; and streamlining and improving the naturalization process.
The Biden transition team has been accepting recommendations from immigrant advocacy organizations on what the new administration should do. Over the next two months, that transition team could be drafting the necessary executive orders and proposed regulations that would be put in place shortly after Biden takes office. In anticipation of some of these changes, this article suggests ways that practitioners might start preparing and adapting their current practice, particularly in the areas of TPS, DED, DACA and family-based immigration.
TPS and DED
Advocates should be prepared to advise TPS clients from countries whose designations the Trump administration attempted to terminate about their possible next steps. These countries include El Salvador, Haiti, Honduras, Nepal, Nicaragua and Sudan. They should expect to benefit from an additional extension of TPS status and employment authorization in the event that the Biden administration either settles ongoing litigation around TPS terminations or announces new TPS and/or DED designations or re-designations.
In the meantime, advocates should continue to screen TPS recipients for more permanent immigration relief, including adjustment of status eligibility. The new administration could open up adjustment eligibility for TPS recipients in three ways. First, it could reverse an August 2020 USCIS memorandum and allow TPS beneficiaries who leave the country on advance parole and return to be considered “inspected and admitted or paroled” under INA 245(a). In anticipation of this change in policy, TPS clients who are immediate relatives (e.g., spouse of a U.S. citizen or parent of a U.S. citizen over 21) and have a legitimate travel need may want to consider applying for and traveling on advance parole.
The second change would be to reverse its interpretation that a departure and return on advance parole does not execute an outstanding removal order. If the interpretation were that it does execute the removal order, those who return on advance parole would not have to move to reopen their proceedings before an immigration judge. This would allow those TPS recipients who are immediate relatives to file for adjustment with USCIS (along with a Form I-212).
The third change would be for the administration to adopt the position of courts of appeal in three judicial circuits (Sixth, Eighth and Ninth) that held that the status of being a TPS recipient is the equivalent of being “admitted” and allow immediate relatives to apply for adjustment. Exceptions would have to be carved out for TPS recipients residing in three judicial circuits (Third, Fifth and Eleventh), which have held otherwise.
Advocates should also prepare to counsel Liberian clients in the United States about any affirmative steps needed to benefit from a possible extension and backdating of DED for Liberia from Jan. 10, 2021, through Jan. 20, 2023.
The Biden administration is expected to take immediate executive action to restore the original DACA program. The Trump Administration attempted to terminate the program in September 2017, and since that time potential first-time DACA applicants have been unable to apply. While the Supreme Court has held that the attempted termination was unlawful, the Trump administration has not restored DACA.
The Biden administration is expected to reverse this policy by rescinding the 2017 DACA termination memo and reopening the program to new applicants who are eligible for DACA but have been prevented from applying since 2017. This includes hundreds and thousands of individuals who have turned 16 since 2017 and have now aged into eligibility for the original program. Prepare for an influx of new DACA applicants seeking assistance in filing first time applications. Community education will be necessary to inform new applicants and existing clients of policy changes.
In July 2020, acting Department of Homeland Security secretary Chad Wolf rescinded the unlawful termination memo but issued a new memo that further restricted DACA. It limited deferred action and EAD grants to one year and required that DACA applicants requesting advance parole demonstrate “exceptional circumstances.” A federal judge in New York has recently held that the 2020 Wolf memo was not an exercise of legal authority and has certified a class of about 1.1 million people who could be eligible to apply for DACA. Under the Biden administration, advocates should expect to see the issuance of two-year EADs restored and restrictions on advance parole travel eased. Advocates are proposing that Biden further expand the DACA program by changing the eligibility guidelines to allow more people to qualify. For example, the Biden administration could make DACA available to those who were under 18 (as opposed to 16) when they first entered the United States, or it could move up the continuous residence date from June 15, 2007, to a more recent date. Another proposal is to relax the eligibility requirements for advance parole, which was limited under the original policy to travel related to humanitarian, educational, or employment purposes. This would allow DACA recipients to travel abroad for any purpose, including simply to visit family. Expanding advance parole accessibility would mean that more DACA recipients who are immediate relatives could become eligible for adjustment of status after having been inspected and admitted or paroled upon return from travel abroad. Biden has also promised to ensure that Dreamers are eligible for federal student aid. Advocates should advise potential DACA applicants to gather evidence of their DACA eligibility, including proof of arrival in the United States as a minor, proof of their presence in the United States on June 15, 2012, proof of their continued residence in the United States since June 15, 2007, evidence that they meet the educational guidelines, and any relevant criminal records. Consider how your program will meet the increased demand for community education, eligibility screening, and application assistance.
The Biden administration has promised to roll back the definition of public charge so that “an individual’s ability to receive a visa or gain permanent residency [is not] contingent on their use of government services such as SNAP benefits or Medicaid, their household income, and other discriminatory criteria.” But since the current public charge rule is the product of a regulatory process, it cannot be replaced by executive order. Nor is it clear how the agency would incorporate the five statutory factors (age, health, family status, financial status, education/skills) into a new public charge definition.
Advocates are proposing that the administration publish an interim final rule that would define public charge as it was 20 years ago and incorporate much of the same language from a 1999 Federal Register Notice, policy memorandum, and field guidance. For example, it would define a public charge as someone who has become primarily dependent on cash assistance for income maintenance or long-term institutionalization. These included only two federal cash assistance programs (Temporary Assistance to Needy Families and Supplemental Security Income), as well as state general relief or general assistance programs. If it is published as a proposed rule with a normal comment period, however, it could take several months to finalize.
Practitioners should consider delaying applying for adjustment of status until after the Biden administration has signaled its intention regarding the public charge rule. Low income applicants who might have difficulty overcoming the current totality of the circumstances test would certainly fare better under a revised rule. It might also obviate the need to complete the current Form I-944, Declaration of Self-Sufficiency, which will likely be eliminated. For other clients, whose positive factors clearly outweigh their negative ones, practitioners should proceed under the current rule.
Another area where practitioners might hold back is with applications for provisional waivers to remedy the unlawful presence bars. Some clients might become eligible to adjust status where under current DHS interpretations or policies they are ineligible. These include TPS recipients, as explained above, who leave and return on advance parole and could adjust as immediate relatives. Or it could include TPS recipients who are determined to have been admitted by virtue of their TPS status. It could also include DACA recipients who leave under a more generous advance parole procedure and are married to U.S. citizens or LPRs. Being able to adjust status obviously avoids any triggering of the unlawful presence bars and the need for a provisional waiver.
The Biden administration promises to immediately rescind the travel bans affecting citizens from 13 mostly Muslim and African countries (Libya, Yemen, Iran, North Korea, Syria, Somalia, Venezuela, Myanmar, Eritrea, Kyrgyzstan, Nigeria, Sudan and Tanzania). These bans only serve to “hurt our economy, betray our values, and serve as a powerful terrorist recruiting tool.” This means that U.S. consulates could begin granting immigrant visa applications filed by citizens from these countries. The current bans range in scope, depending on the country, and prevent the granting of visas to immigrant applicants, nonimmigrant applicants, government officials and their family members, or Diversity Visa lottery winners. The bans affect U.S. citizens and permanent residents living in the United States and who have been barred from reuniting with close family members in the designated countries. Practitioners should begin contacting clients who were discouraged from filing petitions or immigrant visa applications, or whose applications have been held up based on the travel bans.