*Practice limited to federal immigration law. Licensed in NY, MA, but not in CA.

Top 10 Likely Immigration Changes Under President Biden

Well, it finally happened. Donald Trump has lost the 2020 presidential election. Biden will become the 46th president of the United States. This is an incredibly exciting change, especially if you are seeking a green card or a visa, or one of your loved ones is, or you work for a company that’s trying to hire a foreign national. Anyone who has anything to do with immigration has been waiting for this moment for the last four years. Today, I’m going to outline what I consider to be the 10 biggest changes that we can expect from President Biden.

 

Biden will be making sweeping changes to immigration laws. It appears that he will not have the support of the Senate, because that appears like it’ll still be in Republican hands. So he won’t be able to pass any new immigration laws. As president of the United States, he’ll be able to use his executive authority to undo a lot of the problems that Trump created. Here are the 10 big changes that I expect.

 

1: Temporary Protective Status

 

This is a temporary status that’s given to people who for one reason or another cannot go back to their home countries. This is for nationals in Haiti, Central America, Honduras, El Salvador. People lived with TPS for many, many, many years. Trump arbitrarily ended this program. President Biden will be bringing TPS back. This is what I expect. Folks with TPS, worried about TPS ending, TPS will be back.

 

2: DACA

 

This is a big one. DACA: Deferred Action for Childhood Arrivals. So many of the dreamers out there have been waiting for this moment. You’ve been so anxious because you’re worried about your DACA ending. There was a decision in federal court that said that the Trump administration didn’t have the authority to end the DACA program. It ordered the USCIS to continue processing DACA applications, but the Trump administration has refused to follow the court’s order. We expect Biden to use his executive authority to maintain DACA if not expand it.

 

3: Do Away With Public Charge Rule

 

The Trump administration used its authority to come up with this new rule that would make it like a wealth test to see who can come into the United States, and he came out with this new form and they embedded it into the immigration laws. The legality of this was highly subject to legal challenges. There was litigation about whether public charge rules could stay into place. Then when we got into a situation where one court would strike down public charge and then a higher court would reinstate it, and nobody was really sure where things were going with the Public Charge rule. President Biden will scrap Trump’s wealth test Public Charge rules entirely and look for him to maybe loosen the rules. But that Public Charge rule is going to be out the window.

 

4: Filing Fee Pricing

 

The Trump administration jacked up the filing fees significantly. The filing fee to become a naturalized U.S. citizen went up nearly 100%. I think it was like 80% and the filing fee increases like everything else were subject to litigation. Those filing fee increases have been put on hold. I expect president Biden to scrap the filing fee increases also. So that’s another thing that we no longer have to worry about in my opinion, that’s very likely not to be there anymore.

 

5: The Proclamations

 

When the pandemic hit, Donald Trump ran around the country and told everyone that the Coronavirus was no big deal. He undermined public health. He said, we don’t have to wear a mask, he said we should go back to church. That college football should be played, he wanted everybody to disregard the pandemic and he constantly undermined the seriousness of the Coronavirus. However, when it came to issuing Visas to people who are outside the United States, suddenly the Coronavirus was used as a pretext to restrict the issuance of Visas. He used proclamations to stop the DV Lottery Program, the issuance of Visa preference categories in F1, F4 and all the other categories. It restricted employment-based immigration and H1B Visas all under the guise of public health. This was nonsense. If you’ve applied for your mother and father to come to the United States, which you have the legal right to do as a U.S. Citizen, the notion that your mother and father would have some impact on the labor market in the United States is absurd. Biden is going to get rid of these proclamations entirely.

 

6: K1 Visas

 

The Trump administration in March made a decision arbitrarily to just stop processing K1 Visas. All those K1 Visa cases were basically stuck. They made this decision, it was very murky, they didn’t really tell anyone about it. They just said, “Well, this is no longer a priority for us. We’re not going to process and issue K1 Visas.” This decision was never something that they announced, it was all hidden, entirely a violation of the law. I filed countless lawsuits against the Trump administration to help K1 Visa holders, people seeking K1 Visas to avoid this sort of delay. We challenged those legal delays and we got K1 Visas issued. Biden is going to build a functioning Visa processing system. And hopefully the K1 visa will begin to move once he takes office.

 

7: The Muslim Ban

 

Donald Trump, when he was running for president in 2016, he said that we need to ban all Muslims from the United States. When he said that, everybody thought that he was crazy, like this was completely illegal discrimination based on Islamophobia or bias against our friends and neighbors who are practicing Islam and who are Muslims. But once he got into power, he actually did pass a Muslim ban. He didn’t call it that. He called it a travel ban, and they dressed it up with some legal language. I still thought this was absurdly unconstitutional. There is no way that the Muslim ban or travel ban or whatever you want to call it, will be upheld in court. That’s what I thought. I was very naive, because the Supreme Court said the Muslim ban was OK. The Muslim ban has stayed into effect and he’s revised it a few times, he added Nigeria to the list of countries. President Biden is going to get rid of the Muslim ban or travel ban or whatever you call it.

 

8: The H1B Program

 

This is a Visa program for professional workers. The Trump administration just recently came out with new rules that tamper with the prevailing wage. It would make it almost impossible for anyone to get an H1B Visa because H1B Visa holders must be paid a prevailing wage, but the amount of the prevailing wage was so high and so out of line with the reality of the market, that practically nobody would get the H1B visa or qualify for it. This has been subject to litigation. It’s in the courts right now, Biden is going to revise that and eliminate that. H1B visa holders and companies that rely on H1B visa workers should feel some relief on that issue.

 

9: Processing Times

 

Under Trump, the processing times for all types of immigration cases has slowed down tremendously. Some of that is naturally due to the pandemic. You got to wonder when USC is run by Ken Cuccinelli, who despises immigrants, and Mike Pompeo is running the state department, the agency that issues the visas. And he also shares Trump’s animus towards immigrants. Neither of those people are particularly competent. Neither of them care whether people get the visas or the green cards that they deserve. And they’ve run those two agencies practically into the ground. We see processing times that are out of line with anything I’ve seen in my career. We used to get work permits in four months for people. And now they’re stuck for six, seven, eight months. People hire me to file lawsuits to challenge the delays, all the cases. We have asylum seekers who have been waiting six years for a visa interview. All these things are abnormal and reflect Trump’s enduring hatred of immigrants. I expect that USCIS and the state department will begin to function as they should. And eventually, processing times will be back into the realm of what’s normal and reasonable.

 

10: Asylum

 

When Trump was running for president, he said, I’m not against immigration. I’m just against illegal immigration. I want immigrants to do it the right way. Once he took power, he started tampering with the laws and the procedures and the way the laws were administered. And there’s no program that he despised more than asylum. Asylum is legal immigration. We have immigration laws that govern the issuance and the adjudication of asylum application. Trump doesn’t like any of that. So what he did was he said, we’re going to create a new program. If you want to seek asylum, you can no longer do it in the United States. You have to wait in Mexico. He created a highly illegal program called MPP. And also they created this fake rule that we’ve come to refer to as metering, or you go to the border to apply for asylum, which is your legal right under US immigration law, and international law. But instead of being allowed to apply for asylum, they say, well, the borders closed today. You can’t apply for asylum. You have to come back later. And they only let certain people apply for asylum. Over time, Biden will administer asylum applications as per the rule of law, and I think that everyone who seeks asylum will be able to do so in a legal manner under the Biden administration.

 

Expect A Lot Of Immigration Changes, And Hopefully Soon

 

Those are the 10 changes that I most expect from president Biden. He’s going to use his executive authority to get the rule of law back into place when it comes to immigration law. I’m tremendously excited about these changes. There’ll be real opportunities for people. It’s just a wonderful thing. I’m tired from fighting the Trump administration for the last four years, and I’m ready to see some positive changes. I look forward to helping you and your families with this. If you need anything, I’m here for you. Take care.

Josh Goldstein
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