On January 20, 2021, Joseph R. Biden, Jr. was sworn into office as the 46th president of the United States. With this change in administration, it is expected that sweeping policy reviews and changes will be forthcoming. The acts of a president over the first few days and weeks of the new administration are seen as an indicator of the priorities and the intentions of that new administration. The Biden administration is no different. President Biden has expressed his intention to pursue a host of policy and regulatory changes over the first 100 days of the administration.
In one of the first acts of the new administration, President Biden announced that he would be sending the U.S. Citizenship Act of 2021 to Congress as part of his plan to reform the U.S. immigration system. The goal of the legislation is 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 reimagine diverse areas of immigration from employment- and family-based immigration to asylum, refugee, and other humanitarian protections, as well as border security.
Resetting the Tone of the Immigration System
The U.S. Citizenship Act of 2021 states that it is attempting to reset the tone of the immigration system by “restor[ing] humanity and American values to our immigration system.” The legislation proposes integral and substantial changes to immigration law starting at the highest level.
Over the past four years, the Trump administration produced numerous executive orders and regulations aimed at restricting immigration, some of which were viewed as discriminatory in nature. Most notably, one of President Donald Trump’s earliest executive orders, often referred to as the “Muslim ban,” was immediately rescinded through a separate presidential proclamation. Moving forward, by and through a provision of the U.S. Citizenship Act of 2021 termed the NO BAN Act, the Biden administration seeks to “prohibit[] discrimination based on religion and limit[] presidential authority to issue future bans.”
Further, the proposed bill seeks to continue to reset the tone of the immigration system in the United States through changes in the existing language of immigration laws and statutes. A long held point of linguistic contention has been the usage of the term “alien” in relation to foreign nationals and noncitizens throughout the Immigration and Nationality Act and its body of regulations. The U.S. Citizenship Act of 2021 proposes changing the term “alien” to “noncitizen” in all federal immigration laws.
Overhauling the Immigration System and Pathways to Citizenship
The U.S. Citizenship Act of 2021 seeks to reform major areas of the U.S. immigration system, including creating new pathways to citizenship for undocumented individuals and individuals with temporary status, as well as increasing the efficiency of various employment-based immigrant processes.
Pathways to citizenship for undocumented individuals, Dreamers, TPS recipients
The proposed bill includes an eight-year pathway to citizenship for many living in the United States without legal status and who were physically present in the United States on January 1, 2021. This eight-year pathway has two phases. The first phase would grant temporary legal status, with the option to apply for permanent residency after five years. This phase would require applicants to clear background checks, pay taxes, and fulfill other requirements. The second phase would allow “green card holders who pass additional background checks and demonstrate knowledge of English and U.S. civics [to] apply to become citizens.”
Under the legislation, three groups that have been at the forefront of immigration legislation in the recent years, Dreamers, temporary protected status (TPS) recipients, and agricultural workers, could benefit from immediately qualifying for permanent residency. Many Dreamers, or individuals who arrived in the United States as children, have benefited from the Deferred Action for Childhood Arrivals (DACA) program enacted by President Barack Obama in 2012. The program provides temporary relief for Dreamers by providing a two-year work permit after meeting certain requirements. Similarly, TPS provides nationals from some countries affected by armed conflict or natural disaster temporary status and work authorization. These programs have been at the forefront of immigration and legislative agendas in recent years. The third group, agricultural workers, has been at the frontlines of the COVID-19 pandemic as essential workers.
Updating the family-based and humanitarian systems
The proposed bill seeks to “reform[] the family-based immigration system by clearing backlogs, recapturing unused visas, eliminating lengthy wait times, and increasing per-country visa caps.” In line with the theme to restore the system, the legislation would “eliminate[] the so-called ‘3 and 10-year bars,’ and other provisions that keep families apart,” and support families “by more explicitly including permanent partnerships and eliminating discrimination facing LGBTQ+ families.” Because of the per-country visa caps, historically there have been lengthy backlogs in green card availability. The proposed bill seeks to reduce these wait times and “allow[] immigrants with approved family-sponsorship petitions to join family in the United States on a temporary basis while they wait for green cards to become available.”
In terms of asylum, the proposed bill would “eliminate[] the one-year deadline for filing asylum claims and provide[] funding to reduce asylum application backlogs.” In addition, the legislation would “increase[] protections for U visa, T visa, and VAWA applicants,” as well as raise the cap on U visas, reserved for victims of crimes, from 10,000 to 30,000 per year.
Restructuring employment-based immigration
On the employment-based forefront, the proposed bill seeks to grow the U.S. economy by “clear[ing] employment-based visa backlogs, recaptur[ing] unused visas, reduc[ing] lengthy wait times, and eliminate[ing] per-country visa caps.” The legislation would create a program to “stimulate regional economic development, give[] the [U.S. Department of Homeland Security] the authority to adjust green cards based on macroeconomic conditions, and incentivize[] higher wages for non-immigrant, high-skilled visas to prevent unfair competition with American workers.”
The proposed bill would provide additional benefits and protections to dependents of foreign national workers. It would increase the opportunities for dependents of H-1B visa holders to obtain work authorization. This is an expansion of the current H-4 Employment Authorization Document (EAD) guidelines, which do not allow dependent children to obtain work authorization.
The U.S. Citizenship Act of 2021 includes additional protections for the family unit, which would prevent children from “aging out” of the system. Currently, children who turn 21 years old may no longer qualify for immigration benefits as a dependent of their parents’ permanent residency applications. The Child Status Protection Act currently provides some exceptions to permit children who turn 21 years old to continue to qualify for immigration benefits. The proposed bill would expand upon these protections.
Looking Forward
Although President Biden’s immigration proposal was introduced to Congress on the first day of his presidency, it likely will face a long road ahead. The proposed bill has been met with some early criticism, but the president and his allies hope to find common ground and move the legislation forward. As part of this common ground, the legislation would seek to increase border security by authorizing additional funding “to deploy technology to expedite screening and enhance the ability to identify narcotics and other contraband at every land, air, and sea port of entry.”
Ogletree Deakins’ Immigration Practice Group will continue to monitor developments with respect to these and other policy changes and will post updates on the firm’s Immigration blog as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.
