At the one-year mark of the President Biden administration, it has become clear that no fundamental immigration law changes are going take place. A new report by American Immigration Lawyers Association provides a detailed evaluation of Biden Administration’s accomplishments and shortcomings. From the legislative perspective, nothing has happened, and it is very unlikely anything will. This is especially so with the mid-term election coming up this year, and the general election kicking into high gear shortly thereafter. It is all doomed, right?
Not quite. So far, we have seen a dramatic change in tone from the president of the United States. Unlike under the former president’s administration, immigrants are not vilified and made the scape goat for the country’s problems. Much of the draconian and anti-immigrant executive orders have been rescinded. Positive and welcoming policies have been introduced. Discrimination is no longer the official policy of the U.S. government.
Still, there is a lot of work to be done, and a lot the executive branch can do. This administration should not be enforcing or implementing any lasting xenophobic policies of the Trump administration. The COVID-19 Pandemic should not be an excuse to undermine U.S. asylum laws and protection for refugees. Those fleeing persecution should be allowed the opportunity to present their cases to the United States. Haitians fleeing disaster and persecution should be treated humanely and offered protection in the U.S while they make their case.
There are regulatory changes and interpretations the administration can put in place that will make a dramatic difference in the lives of immigrants. Steps like expeditiously approving Employment Authorization applications should not be difficult. Some current applicants have waited for one year to get their work authorization document renewed. That is unconscionable. While employers are decrying the lack of workers, the least our government can do to help struggling employers is to quickly adjudicate these Employment Authorization applications.
The Biden administration must build on the lessons learned from Obama administration. In 2013, the Obama Administration expanded the concept of ‘Parole in Place’ to allow some immediate family members of active or former military service or reserve members to secure legal status in the United States, and possibly apply for residency status, without having to return to their home countries. This was meant to provide peace of mind to the Service Members. This minor change in policy was heralded as a creative way to use existing laws to address pressing problems. The Biden administration can expand this principle to include other categories of applicants. For instance, the eligibility for Parole in Place could include undocumented foreign nationals who have been in the United States for more than 5 years, without major criminal records and who have U.S. citizen child. This would address the huge, persisting problem of undocumented persons in our system while expanding the pool of eligible workers.
Relatedly, an employer seeking to bring foreign workers to the United States for a specific job on a permanent basis should not have to wait for more than 4 months for the Department of Labor to issue a Prevailing Wage Determination, which is the preliminary step that must be completed before a petition can be initiated. And, once the prevailing wage is issued, there is no reason for it to take more than six months for the Department to Labor to decide on the application, given today’s technology. Both these steps must occur before the employer starts the application with the Immigration Service. The Biden administration must force efficiency into the system.
There exist a variety of proposals that suggest additional action the administration could take in view of the current legislative realities. AILA has provided great proposals for what Biden’s administration can do, but they must start now! The administration must overcome their current stagnant inertia or self-doubt. We should not make the mistake of waiting until the end of the term to rush through ideas, which may be overturned. To take bold steps today is also good politics. Afterall, that is what the Biden voters expect of him; such steps will surely energize voters when they are next called to the ballot box.