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President Biden’s Day One Immigration Executive Orders

On January 20, 2021, his first day as the 46th President of the United States, Joe Biden signed several Executive Orders, Proclamations, and Memoranda on immigration.  The actions are part of the Biden Administration’s efforts to address the hardline immigration stance of the previous administration, and to create the foundation for more comprehensive immigration reform seeking to modernize U.S. immigration laws. 

This article briefly discusses President Biden’s directives on January 20, 2021, related to DACA, civil immigration enforcement priorities, the travel ban, construction of the wall along the Southern border, and deferred enforced departure for eligible Liberians.

Deferred Action for Childhood Arrival (DACA) must be maintained and fortified

President Biden signed a Memorandum to the Attorney General and the Secretary of Homeland Security, directing them to preserve and fortify DACA. 

The Trump administration previously ordered the termination of DACA back in 2017.  The decision was litigated extensively and in June 2020 the U.S. Supreme Court reinstated DACA. The Supreme Court found the Trump administration’s order to terminate the program was arbitrary and capricious and violated the law.  Since then, the Trump administration tried to take additional steps to cripple the program, with an eye toward terminating it again. 

President Biden’s January 20, 2021, Memorandum reassures DACA beneficiaries that the program is not under jeopardy during his administration and that eligible DACA holders, namely young undocumented immigrants who were brought to the U.S. as children, have gone to school, obeyed the law and, for some, even enlisted in the military, may remain and work in the U.S. without fear of deportation.

President Biden’s Memorandum does not add new benefits for DACA recipients, nor does it give them a path to permanent residence or citizenship, because only Congress has the power to do so.  However, President Biden has vowed to introduce legislation for consideration by Congress, in hopes for a permanent solution.

Revise the Civil Immigration Enforcement Priorities

Resources for civil immigration enforcement are limited, and they always have been. As a result, President Obama had directed his administration to prioritize the allocation of resources toward removing immigrants who were convicted of serious crimes and who pose a threat to public safety first.  President Trump signed Executive Order (E.O.) 13768 of January 25, 2017, in which he changed these priorities and extended it to those without criminal convictions and even those with minor infractions such as traffic offenses (among others).  President Trump’s E.O. 13768 also ordered federal funding withheld from jurisdictions that his administration deemed to be “sanctuary cities.”

On January 20, 2021, President Biden signed an Executive Order immediately revoking former President Trump’s E.O. 13768.  President Biden directed the Attorney General, the Secretary of State, the Secretary of Homeland Security, and other relevant agencies, to review and revise any agency action and policy that had been developed under the Trump administration as a result of former E.O. 13768. 

Stop the Muslim Travel Ban

President Biden signed a Proclamation immediately revoking several of former President Trump’s orders that discriminated predominantly against visa applicants from Muslim and African countries.  Between the original travel ban from 2017 and subsequent revisions, by the end of the Trump administration the travel bans had impacted nationals of Nigeria, Myanmar, Eritrea, Kyrgyzstan, Tanzania, Syria, Iran, Iraq, Libya, Somalia, Sudan, Yemen, Venezuela, and North Korea, with various degrees and levels of travel prohibitions.  President Biden therefore revoked E.O. 13780 of March 6, 2017; Proclamation 9645 of September 24, 2017; Proclamation 9723 of April 10, 2018; and Proclamation 9983 of January 31, 2020. 

President Biden ordered the Secretary of State and Secretary of Homeland Security, in consultation with the Director of National Intelligence, to provide a report within 120 days regarding current screening and vetting procedures for immigrant and nonimmigrant visa applicants and make recommendations to improve these procedures.  The report is also required to analyze and review the current foreign government information-sharing protocols. 

President Biden’s Proclamation further ordered all embassies and consulate to resume visa operations for all applicants previously affected by the now-revoked travel bans, unless otherwise prevented by applicable laws and procedures (including those related to COVID-19 restrictions).  The order directs the Secretary of State to issue a report within 45 days regarding the number of individuals with visa applications pending under the now-revoked travel bans, and a plan for expeditiously adjudicating the pending applications.

President Biden’s Proclamation also directs the Secretary of State to issue a proposal to reconsider the applications for all those whose immigrant visas were denied as a result of the now-revoked travel bans, and to ensure that prior visa denials caused by the travel bans will not prejudice those who wish to reapply for a visa in the future.

Stop the Wall

President Biden signed a Proclamation directing the Secretary of Defense and the Secretary of Homeland Security to pause work on all construction projects on the southern border wall, to the extent permitted by law, in order to assess the legality of the funding and contracting methods used to construct the wall, to assess the administrative and contractual consequences of terminating the construction project, and to design a plan, within 60 days, for redirecting the funding and repurposing the contracts with private contractors engaged in the wall construction. With this Proclamation, President Biden also vowed that his administration will end the spending of American taxpayer dollars on building the wall.

Reinstate Deferred Enforced Departure for Liberians to June 2022

Liberian nationals have had protection in the U.S. since 1991 when former President George H. W. Bush designated Liberia for Temporary Protected Status (TPS), due to armed conflicts that forced Liberians to flee their country.  Under TPS, eligible Liberians were able to live and work in the U.S. legally, yet temporarily, until country conditions would improve for them to return home.  The armed conflict ended in 2003, and the TPS program was phased out by 2007. 

President George W. Bush continued the humanitarian approach his father had adopted toward Liberian nationals, especially since many had by now spent almost two decades in the U.S. in legal status, and conditions in Liberia had not improved enough to ensure their safe return.  He issued Deferred Enforced Departure (DED), a benefit that extended eligible Liberians’ ability to remain and work in the U.S. legally.  The following administration, under President Obama, also extended the DED program, as country conditions remained unsafe.

Former President Trump terminated the program, allowing only for a limited transition period for Liberians to leave the U.S.  In response, Congress passed the Liberian Refugee Immigration Fairness provision as part of the 2020 National Defense Authorization Act, providing eligible Liberians who previously held TPS or DED the ability to apply for permanent residence.  Congress allowed eligible Liberians until December 20, 2020, to apply for Permanent Residence. 

The Trump administration’s implementation and rollout of the law was slow and cumbersome, which led to severe delays.  As a result, Congress extended the deadline until December 2021.  However, because former President Trump did not extend DED beyond January 10, 2021, Liberians affected by this program have lost employment authorization after decades of being allowed to legally work in the U.S.   

On January 20, 2021, President Biden issued a Memorandum that reinstated DED for eligible Liberians until June 30, 2022, thereby extending their work authorization and allowing for more time to pursue the benefits provided by Congress in the Liberian Refugee Immigration Fairness act.

We will continue to monitor all changes to immigration law, policy and procedures under the Biden administration and will provide updates as needed.  For any questions regarding immigration benefits or applications, please do not hesitate to contact us at (608) 252-9291 or rvo@dewittllp.com.  

About the Author

Raluca Vais-Ottosen has assisted numerous clients with Immigration matters ranging from family-based and individual Immigration applications, to employment related visas and I-9 employment eligibility verification issues. In addition to her Immigration practice, she also has an extensive background in Employment Law. She assists companies in a number of areas, including but not limited to claims of workplace discrimination, harassment and retaliation, termination and constructive discharge, workplace investigations by State and Federal agencies, as well as Employment Litigation.

Contact Luca by email or by phone at (608) 252-9291.

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