Biden wants to remove this controversial word from US laws

Words matter:

It’s just one small part of the sweeping immigration overhaul President Biden is pushing.

But the symbolic significance is huge.

Biden’s proposed bill, if passed, would remove the word “alien” from US immigration laws, replacing it with the term “noncitizen.”
 
It’s a deliberate step intended to recognize America as “a nation of immigrants,” according to a summary of the bill released by the new administration.
 
The term “illegal alien,” long decried as a dehumanizing slur by immigrant rights advocates, became even more of a lightning rod during the Trump era — with some top federal officials encouraging its use and several states and local governments taking up measures to ban it.
 
“The language change on the first day of this administration, with Kamala Harris the daughter of immigrants, to me it’s not just symbolic…it’s foundational,” says Jose Antonio Vargas, an undocumented immigrant whose organization, Define American, pushes for more accurate portrayals of immigrants.
 
“How we describe people really sticks. It affects how we treat them,” he says. “How we talk about immigrants shapes the policies. It frames what are the issues really at stake here. It acknowledges that we’re talking about human beings and families.”

What the laws say now

US code currently defines “alien” as “any person not a citizen or national of the United States.”
 
Officials in the past have pointed to the term’s prevalence in US laws to defend their word choices.
 
In 2018, former Attorney General Jeff Sessions instructed prosecutors to refer to someone who’s illegally in the United States as “an illegal alien,” citing the US code in an agency-wide email.
 
The term “alien” was often invoked by President Trump in speeches as he warned of what he saw as the dangers of unchecked illegal immigration.
 
Speaking at the Mexico border last week in one of his final addresses as president, Trump used the term at least five times.
 
“We were in the Trump administration the perennial boogeyman,” Vargas said.
 
“Whenever Trump was in trouble, he started talking about the ‘illegals’ and talking about the border.”
 
But not everyone in the Trump administration was a fan of the language.
 
In an interview with the Washington Post published shortly before he resigned as acting secretary of Homeland Security in 2019, Kevin McAleenan told the newspaper he avoided using the term “illegal aliens” and instead described people as “migrants.”
 
“I think the words matter a lot,” McAleenan said, according to the Post. “If you alienate half of your audience by your use of terminology, it’s going to hamper your ability to ever win an argument.”

This isn’t the first effort to change such wording

California struck “alien” from the state’s labor code in 2015.
 
New York City removed the term from its charter and administrative code last year.
 
Throughout President Trump’s time in office, immigrant advocates criticized dehumanizing rhetoric.
In guidelines issued in 2019, New York City banned the term “illegal alien” when used “with intent to demean, humiliate or harass a person.” Violations, the city warned, could result in fines up to $250,000.
 
And last year two Colorado lawmakers introduced a bill to replace the term “illegal alien” with “undocumented immigrant.” The bill never made it to the state Senate floor for a vote.

Prank callers targeted the term early in the Trump administration

One of the first times the use of the term “alien” drew widespread attention during the Trump administration was in 2017 after officials publicized a hotline for victims of “crimes committed by removable aliens.”
 
Prank callers swiftly flooded the line with reports about space aliens, sharing examples on social media of their comments about Martians and UFOs.
 
But Vargas says the term and others used to demonize immigrants are no laughing matter.
 
“Language has power. And I think we saw that in the Trump administration, how it used dehumanizing terms and how it debased language and in turn debased people,” Vargas says. “If you call them ‘alien,’ of course you’re going to put them in jail, of course you’re going to lock them up, of course you’re not going to care that you’re separating little kids from their parents.”
 
Vargas says the new administration’s effort to use more respectful language gives him hope that some Americans’ views on undocumented immigrants could also shift. Changing just one word, he says, could have a far-reaching impact for millions of people.
 

Rioux: Réconcilier les Américains?

Rioux on what he perceives to the the extreme left in the USA and his attack against programs targeted towards minority communities. A caricature of these programs and an ignorance of the reality lived by those communities, not to mention the ample evidence of worse economic and social outcomes.

Of course, it is a political risk, but one that has historical and current justifications, particularly after the Trump presidency.

And should the general policy changes work (economic recovery, COVID measures, immigration reform etc) unlikely that there will be major negative political consequences despite some of the political rhetoric:

Lorsqu’il a juré sur la Bible, perché sur les hauteurs du Capitole devant des rangées de drapeaux plantés dans le sol, Joe Biden avait l’air bien seul. Le nouveau président américain a évidemment juré de rassembler l’Amérique et les Américains. Les accents paraissaient souvent sincères. Mais le pourra-t-il ?

Pour ce faire, ce vieux membre de l’establishment démocrate peut miser sur sa longue expérience de négociateur. Mais il lui faudra pour cela prendre en compte le fossé grandissant qui sépare le peuple américain de ses élites et qui a servi de marchepied à Donald Trump pour se hisser au pouvoir.

Lorsqu’on veut se réconcilier avec quelqu’un, il faut commencer par le traiter poliment et éviter de l’insulter. En jouant l’hyperbole sur les événements du Capitole, les démocrates et les médias n’ont fait pour l’instant que jeter de l’huile sur le feu. Si cette profanation d’un lieu sacré de la démocratie est un geste gravissime, il faut une imagination débridée pour comparer ces personnages de carnaval venus faire des égoportraits dans le bureau de Nancy Pelosi aux marins de Kronstadt, aux milices de la Nuit de cristal ou aux incendiaires du Reichstag.

La génération des « safe spaces » biberonnée aux jeux vidéo a peut-être eu des sueurs froides. Mais ce qui s’est passé le 6 janvier a plus à voir avec la jacquerie des gilets jaunes français qu’avec une insurrection ou une tentative de coup d’État. En novembre 2018, les gilets jaunes avaient bien tenté d’envahir l’Élysée. La garde républicaine eût-elle été aussi empotée que la police américaine, les manifestants auraient paradé en Robespierre dans le bureau d’Emmanuel Macron. Mais ce n’aurait été qu’une parodie de révolution.

Nous avons assisté en direct au suicide politique du Dr Folamour qui a dirigé les États-Unis pendant quatre ans. Dans cette société éminemment violente qu’ont toujours été les États-Unis, le geste répond, comme en miroir, aux longues semaines d’émeutes qui ont suivi l’assassinat de George Floyd et qui ont fait, elles, une trentaine de morts. Avec la bénédiction de nombreux élus démocrates !

Il faut néanmoins reconnaître les efforts que Joe Biden a déployés pour reconquérir les États de la Rust Belt que Trump avait ravis aux démocrates en 2016. Mais ces gains ne seront que de courte durée si le président persiste à obéir à son extrême gauche en introduisant, notamment, des critères raciaux dans le programme de relance du pays. Un programme conçu, dit-il, « spécifiquement pour aider les entreprises possédées par des Noirs et des Bruns » (Black and Brown people). Des mots dignes d’un nouvel apartheid !

Peu importent les appels du président à la réconciliation, cette pensée racialiste est la recette parfaite de la guerre civile. En Oregon, le fonds de 62 millions destiné à aider spécifiquement « les citoyens et propriétaires d’entreprises noirs » est d’ailleurs l’objet de poursuites devant les tribunaux. Car cette épidémie « n’est pas une affaire de Blancs ou de Noirs. C’est l’affaire de tout le monde », a déclaré l’entrepreneur d’origine hispanique Walter Leja, qui fait partie des plaignants.

Joe Biden ne peut pas ignorer que, selon l’Institut Gallup, 74 % des Américains sont contre l’utilisation de critères raciaux dans l’embauche. Un consensus confirmé en novembre par le rejet, pour une seconde fois en 25 ans, de la proposition 16 en Californie. Soutenue par les lobbies ethniques et les grandes entreprises, elle visait à réintroduire ce qu’on nomme là-bas la « discrimination positive » dans l’emploi, l’éducation et l’octroi des contrats publics.

Or, cette réaffirmation des principes d’égalité républicaine ne vient pas cette fois des perdants de la mondialisation, ceux-là mêmes qu’Hillary Clinton avait qualifiés de « déplorables ». Elle vient de l’un des États les plus modernes, les plus multiethniques et qui est de plus un fief démocrate. Aux États-Unis, l’attachement au principe de l’égalité républicaine dépasse de loin les 74 millions d’électeurs de Donald Trump. Il est même un des fondements du pays. Biden ne pourra pas le renier sans en subir les conséquences.

« Réconcilier l’Amérique », cela ne se fera pas non plus en légitimant la censure pratiquée par ces milliardaires du numérique alliés aux démocrates qui, du haut de leur supériorité morale, ont supprimé les comptes d’un président démocratiquement élu. Cette nouvelle alliance de la « cancel culture » avec les magnats des GAFA a de quoi faire se retourner dans leurs tombes tous les « progressistes » d’hier et d’avant-hier.

Joe Biden ne doit pas se tromper sur les raisons qui lui ont permis de l’emporter de justesse au Sénat et au Congrès. Si les Américains ont voulu se débarrasser d’un président égocentrique, incohérent et narcissique, ils n’ont pas plébiscité la politique racialiste et la culture de l’Index que caresse la gauche du Parti démocrate.

Réconcilier l’Amérique suppose que l’on croie dans la nation et une citoyenneté qui ne soit pas fondée sur des critères raciaux. Faute de tenir compte de ces avertissements, l’épisode Biden pourrait bien prendre fin dans deux ans, à l’occasion des élections de mi-mandat. Et la guerre civile larvée symbolisée par l’émeute du Capitole se poursuivra de plus belle.

Source: TO ADD

Biden bets big on immigration changes in opening move

Good overview:

For the opening salvo of his presidency, few expected Joe Biden to be so far-reaching on immigration.

A raft of executive orders signed Wednesday undoes many of his predecessor’s hallmark initiatives, such as halting work on a border wall with Mexico, lifting a travel ban on people from several predominantly Muslim countries and reversing plans to exclude people in the country illegally from the 2020 census.

Six of Biden’s 17 orders, memorandums and proclamations deal with immigration. He ordered efforts to preserve Deferred Action for Childhood Arrivals, a program known as DACA that has shielded hundreds of thousands of people who came to the U.S. as children from deportation since it was introduced in 2012. He also extended temporary legal status to Liberians who fled civil war and the Ebola outbreak to June 2022.

The Homeland Security Department announced a 100-day moratorium on deportations “for certain noncitizens,” starting Friday, after Biden revoked one of Trump’s earliest executive orders making anyone in the country illegally a priority for deportations.

That’s not it. Biden’s most ambitious proposal, unveiled Wednesday, is an immigration bill that would give legal status and a path to citizenship to anyone in the United States before Jan. 1 — an estimated 11 million people — and reduce the time that family members must wait outside the United States for green cards.

Taken together, Biden’s moves represent a sharp U-turn after four years of relentless strikes against immigration, captured most vividly by the separation of thousands of children from their parents under a “zero tolerance” policy on illegal border crossings. Former President Donald Trump’s administration also took hundreds of other steps to enhance enforcement, limit eligibility for asylum and cut legal immigration.

The new president dispelled any belief that his policies would resemble those of former President Barack Obama, who promised a sweeping bill his first year in office but waited five years while logging more than 2 million deportations.

Eager to avoid a rush on the border, Biden aides signaled that it will take time to unwind some of Trump’s border policies, which include making asylum-seekers wait in Mexico for hearings in U.S. immigration court. Homeland Security said that on Thursday it would stop sending asylum-seekers back to Mexico to wait for hearings but that people already returned should stay put for now.

It “will take months to be fully up and running in terms of being able to do the kind of asylum processing that we want to be able to do,” Jake Sullivan, Biden’s national security advisor, told reporters.

Despite the deliberative pace in some areas, Biden’s moves left pro-immigration advocates overjoyed. Greisa Martinez Rosas, executive director of United We Dream, called the legislation “the most progressive legalization bill in history.”

“We made it,” she said Wednesday on a conference call with reporters. “We made this day happen.”

It is even more striking because immigration got scarce mention during the campaign, and the issue has divided Republicans and Democrats, even within their own parties. Legislative efforts failed in 2007 and 2013.

More favorable attitudes toward immigration — especially among Democrats — may weigh in Biden’s favor. A Gallup survey last year found that 34% of those polled supported more immigration, up from 21% in 2016 and higher than any time since Gallup began asking the question in 1965.

Seven in 10 voters said they preferred offering immigrants in the U.S. illegally a chance to apply for legal status, compared with about 3 in 10 who thought they should be deported to the country they came from, according to AP VoteCast. The survey of more than 110,000 voters in November showed 9 in 10 Biden voters but just about half of Trump voters were in favor of a path to legal status.

Under the bill, most people would wait eight years for citizenship but those enrolled in DACA, those with temporary protective status for fleeing strife-torn countries and farmworkers would wait three years.

The bill also offers development aid to Central America, reduces the 1.2 million-case backlog in immigration courts and provides more visas for underrepresented countries and crime victims.

The proposal would let eligible family members wait in the United States for green cards by granting temporary status until their petitions are processed — a population that Kerri Talbot of advocacy group Immigration Hub estimates at 4 million.

Unmarried adult children of U.S. citizens who have been waiting outside the country for more than six years are just getting their numbers called this month. Waits are even longer for some nationalities. Married sons and daughters of U.S. citizens from Mexico have been waiting outside the United States since August 1996.

The bill faces an enormous test in Congress. Sen. Bob Menendez, a New Jersey Democrat, said Wednesday that he would lead the Senate effort. Skeptics will note that Ronald Regan’s 1986 amnesty for nearly 3 million immigrants preceded large numbers of new arrivals and say to expect more of the same.

In a taste of what’s to come, Sen. Tom Cotton, an Arkansas Republican, described the bill as having “open borders: Total amnesty, no regard for the health and security of Americans, and zero enforcement.”

To be clear, enforcement has expanded exponentially since the mid-1990s and will remain. Biden’s bill calls for more technology at land crossings, airports and seaports and authorizes the Homeland Security secretary to consider other steps.

Biden warned advocates last week that they should not hold him to passage within 100 days, said Domingo Garcia of the League of United Latin American Citizens, who was on a call with the president.

“Today we celebrate,” Carlos Guevara of pro-immigration group UnidosUS said Wednesday. “Tomorrow we roll up our sleeves and get to work.”

Source: Biden bets big on immigration changes in opening move

The Good and Bad of Biden’s Plan to Legalize Illegal Immigrants

Of note:

Recent news reports suggest that Joe Biden will propose a series of immigration bills for Congress to consider early in his administration. The bill with the most details reported so far would legalize the roughly 11 million illegal immigrants currently living in the United States. According to the quick news summaries of the possible bill, it is a simple legalization that would grant lawful status, the ability to earn a green card in five years, and citizenship in an additional three to virtually all illegal immigrants currently living in the United States. That is a vastly simpler and cheaper way for illegal immigrants to legalize compared to the expensive and complex schemes of earlier failed reform efforts.

The Good

The good part about this bill is that mass legalization would be very positive for the United States. The United States would benefit from quickly legalizing illegal immigrants who aren’t real criminals and putting them on a path toward permanent residency and citizenship. In the short run, many opponents of immigration will be upset, but the vast reduction in the population of illegal immigrants and their successful assimilation will reduce social perceptions of chaos and increase the perception that the government has immigration firmly under control, all long term benefits for the immigration debate and the country as a whole.

Further, the usual complaints about immigration liberalization would not apply to legalizing illegal immigrants because they are already here. The lower crime rates of illegal immigrants relative to native‐​born Americans and possibly compared to legal immigrants means that we’re not going to see a surge in crime from legalization and may even see a drop in crime as a result. Also, illegal immigrants are already working in the United States with generally higher labor force participation rates than other groups, so legalizing them won’t increase wage competition with American workers because they are already here working.

Furthermore, wages would increase for illegal immigrants after they’re legalized. Work by my former colleague Andrew Forrester and I found that illegal immigrants initially faced a hefty wage penalty of about 11.3 percent relative to legal immigrants during the 1995–2017 period. Although illegal immigrant wages did converge with legal immigrants during that time, and more recent illegal immigrants entered with lower wages penalty than those that came in the past, legalization would hasten illegal immigrant and overall immigrant wage convergence with native‐​born Americans.

The bigger potential effects could be on the government’s finances. Illegal immigrants have limited access to few means‐​tested welfare programs but they already have access to public education. Legalization will increase their access to these programs once they naturalize, but it won’t increase their access to the most expensive outlays like public education. At the same time, their wages will also increase due to legalization and their U.S.-born children will have much higher levels of education and, thus, will likely pay more in taxes than receive in benefits. Therefore, it’s unclear what the net‐​fiscal impact would be and it depends on the time‐​horizon for analyzing those effects.

The good political part of this bill is that Democrats are finally playing hardball on immigration as they will not be presenting legislation already laden with compromised positions. Instead, they will start with a cleaner and simpler bill and then ask what other senators and congressmen need to get on board, which will no doubt be a lot of expensive security signaling along the border. Also, Democrats have finally learned that any pro‐​immigration piece of legislation that they introduce will immediately be called “amnesty” by its opponents, so there isn’t a political downside to introducing a real amnesty. After all, what are proponents going to say? “This time it’s a REAL amnesty” doesn’t carry the same weight.

The Bad

The policy downside of this bill is huge because it has no chance of becoming law in its current reported form. Moderate Democrats like Senators Joe Manchin and Kyrsten Sinema aren’t likely to support it, to say nothing of the ten Republican senators necessary to pass it. A more moderate legalization is obviously better than no legalization at all. One lesson I’ve learned over the years is that we should be less strategic when thinking about immigration reform – if there is an opportunity to legalize some people or expand legal immigration then pro‐​immigration politicians must seize it at that moment rather than trying to think of how doing so makes passing other immigration reforms more difficult. Nobody knows the answer to the long term political consequences, they never have, and we should all stop pretending that we do and instead support policies that we know will be good when we can.

If the hypothesized Biden bill fails then it would also open up other possibilities. Politically, it would be a marker bill that shows where the Democratic Party stands and would be a starting point for future negotiations. That probably doesn’t have much value, but that’s the conventional strategic wisdom that I just told you to disregard in the previous paragraph.

More important is that a failure to legalize illegal immigrants in Congress will give more of a political justification for a Biden administration to take sweeping executive actions to legalize all illegal immigrants by granting them Temporary Protected Status (TPS). Under current statute, a president has the power to grant TPS to any immigrant in the United States if their home country faces a disaster.

Importantly, the statute explicitly mentions “epidemic” as such a disaster, and since all countries are suffering from COVID-19, then‐​President Biden could grant all illegal immigrants TPS. Immigration attorney and former deputy assistant attorney general for the Office of Immigration Litigation at the U.S. Department of Justice’s civil division Leon Fresco thinks this will be legally sound, and he’s probably correct. A universal grant of TPS could be undone by a future president but, at minimum, it would allow some current illegal immigrants to adjust their status to a green card and thus shrink the pool of illegal immigrants.

The major structural legal change to the immigration system under Trump is that the President now has the power to stop all legal immigration from abroad for any reason. The failure of the immigration legalization bill in Congress would allow Biden to test the power of the president to at least legalize illegal immigrants using broad existing statutory authority. Beyond that, there are many smaller actions that Biden could follow that will reduce the illegal immigrant population as detailed here by my colleague David Bier. No president should be making policy by executive decree but no president is likely to give up the power that Congress unwisely granted it, so you should expect many executive and agency actions from Biden here.

Other Legalization Ideas that Congress Should Consider

There are many ways to legalize illegal immigrants. One reform that should be included in the bill regardless of anything else is a rolling legalization that would allow long‐​term illegal immigrant residents and lawful residents without green cards to be granted green cards on an ongoing basis without an application cutoff date and based entirely on how long they’ve resided here without committing any crimes. We proposed just such a reform here based on a portion of British immigration law. This will reduce the potential for the illegal immigrant population to grow in the future.

Another way is to create a tiered legalization system that lets illegal immigrants choose whether they want to be a temporary resident, a quasi‐​permanent resident, or be on a pathway toward citizenship. The less‐​permanent means to reside here should be easier to acquire while the path toward citizenship should be harder. As evidenced by the Reagan amnesty, only 41 percent of the illegal immigrants who got a green card decided to naturalize. There’s no reason to make most current illegal immigrants who don’t want citizenship to be on that track. This proposal is less positive than legalizing all non‐​violent illegal immigrants but will likely be closer to what eventually becomes law.

Beyond legalizing illegal immigrants, the best way to guarantee that the reduction in illegal immigration that an amnesty would accomplish won’t be undone by future waves of illegal immigration is to increase lawful immigration. There’s little evidence that amnesties attract illegal immigrants. The overwhelming evidence is that expanding legal immigration reduces illegal immigration. From 2000–2018, a 1 percent increase in the number of H-2 visas for Mexicans is associated with a 1.04 percent decline in the number of Mexican illegal immigrants apprehended by Border Patrol – a finding that is statistically significant at the 1 percent level. Even nativists agree that legal immigration decreases illegal immigration. Channeling potential illegal immigrants into the legal immigration system will do the most to reduce illegal immigrant inflows in the future that will guarantee that the stock of illegal immigrants doesn’t grow.

The Biden administration has a lot of work ahead of it to undo the large number of immigration executive actions implemented by the Trump administration. Much of that work won’t earn headlines but it will be important for creating a better immigration system. On top of that, it’s heartening to see the Biden administration getting ready to hit the ground running even if their first bill has virtually no chance of becoming law as it is currently envisioned.

Source: The Good and Bad of Biden’s Plan to Legalize Illegal Immigrants

How Executive Action Can Build a More Fair, Humane, and Workable Immigration System

From the Democrat think tank, the Center for American Progress, a likely indicator of what to expect from the Biden administration:

Over the past four years, the Trump administration wreaked havoc on the nation’s immigration and humanitarian protection systems, all without enacting a single law—and often in violation of existing laws. Building on a set of laws that were already outdated, overly inflexible, and poorly suited to meet the country’s realistic wants and needs, the administration made full use of the significant amount of executive authority that Congress has both explicitly and implicitly delegated to the president over many decades. As many commentators observed when looking at the administration’s relentless anti-immigrant agenda, cruelty was often the point. Now, the incoming Biden administration—which recognized early on that “we are living through a battle for the soul of this nation” and centered its presidential campaign around a pledge to “restore the soul of America”—will need to similarly use executive authority to repair much of the damage done over the past four years, as well as in previous years. By doing so, it can help build an immigration system that is more fair, humane, and workable.

Given the substantial task at hand and the nature of both the administrative state and administrative law, some of this will take time. But because the stakes are so great for so many—indeed, for the country as a whole and for its future—the work must begin immediately and it must be sustained for the duration of the administration. By the end of his first week in office, President Donald Trump had already issued three separateexecutive orders pertaining to immigration.

During his first days in office, President-elect Joe Biden should issue a single omnibus executive order that 1) lays out a condemnation of the damaged system that he is inheriting, 2) articulates a vision for the direction in which he will take things over the course of his term in office, and 3) makes initial, urgently needed changes consistent with that vision, including the imposition of a 100-day moratorium on deportations while the administration conducts a comprehensive review of outstanding cases and develops a set of sensible enforcement priorities.

What the first executive order on immigration should include

The executive order should begin with a high-level description of the breadth of damage done by the Trump administration, including but not limited to:

Providing a concise but comprehensive condemnation of the damage done by the Trump administration is necessary to convey to the public and to both political appointees and career staff that the Biden administration recognizes the challenge at hand and will waste no time in beginning to build immigration and humanitarian protection systems that are far better than what exists today.

The executive order should then address issues by category, articulating generally what values and objectives should guide the development of policy in each area. Where possible, it should immediately rescind executive orders and policies that run counter to those values and objectives—for example, various entry bans issued pursuant to section 212(f) of the Immigration and Nationality Act, the nationwide expansion of expedited removal, and the so-called asylum cooperative agreements with Guatemala, Honduras, and El Salvador. The order should also task Cabinet secretaries with the responsibility of studying different aspects of the issues within their jurisdiction and reporting back in fixed periods of time with new plans and policies consistent with the administration’s vision.

For example, the secretary of homeland security should be tasked with establishing new civil immigration enforcement guidelines; developing a range of community-based supervision programs to significantly decrease the country’s overreliance on a punitive detention system; conducting an immediate audit of the current detention population to release those at heightened risk of developing serious health consequences if they were to contract the coronavirus, as well as vulnerable populations and others for whom detention is not strictly necessary; establishing a protocol to promote cooperative enforcement strategies designed to enhance compliance with U.S. immigration laws; and reviewing extant agreements with state and local law enforcement agencies, including all forms of 287(g) agreements, to begin the process of phasing them out entirely.

Similarly, the attorney general should be directed to take steps to significantly reduce the immigration court backlog by removing low-priority cases from the docket and to review immigration decisions issued by prior attorneys general and the Board of Immigration Appeals to identify cases ripe for certification and prompt reissuance to correct inconsistencies with law. In addition, the secretaries of state and health and human services should be ordered to engage stakeholders and review policies and procedures to ensure that a rebuilt U.S. Refugee Admissions Program is more resilient. The secretaries of homeland security and state, meanwhile, should develop a plan to restore an orderly and efficient asylum system that lives up to our highest ideals, including by dismantling the “Remain in Mexico” program.

While this bureaucratic process takes place and the administration studies each of these issues and designs appropriate solutions or harm-mitigation plans, it should issue a moratorium on deportations and associated detentions and arrests for a 100-day period, ensuring that enforcement actions going forward follow sensible enforcement priorities and are aligned with the new administration’s vision and values and not those of its predecessor.

Congressional engagement and steady policy rollouts in furtherance of the administration’s vision

During this time, the administration should work closely with the new Congress to use all necessary legislative tools to enact legislation without delay. This should include permanent protections for Dreamers and TPS holders—such as those covered by the American Dream and Promise Act, H.R. 6, which passed the House in 2019 with bipartisan support—as well as undocumented farm workers, who would have received protection under the Farm Workforce Modernization Act, H.R. 5038, which also passed the House in 2019 with even greater bipartisan support. Both of these bills ultimately died in the Senate under Sen. Mitch McConnell’s (R-KY) leadership, but they should be high priorities for the new-look 117th Congress. In addition, as the Biden administration and Congress work to enact a long overdue national coronavirus relief and recovery package that rises to the significant challenges facing the country today, they should ensure that undocumented essential workers and their families—who continue to play an important role in the nation’s fight against the coronavirus pandemic and will play a similarly critical role in the country’s efforts to rebuild—are placed on a path to citizenship.

Of course, necessary policy changes should be announced when they are ready. For instance, the administration should, without delay, begin the process of identifying and reuniting in the United States parents and children separated under the Trump administration’s family separation policy. Additionally, as part of a broader strategy of constructive reengagement with Central America, the secretary of homeland security should issue new TPS designations for El Salvador, Guatemala, Honduras, and Nicaragua on account of the two unprecedented hurricanes that devastated those countries in November and exacerbated their ongoing public health and food insecurity crises.

At the conclusion of this 100-day period, the administration should be prepared to issue new policies governing future civil immigration enforcement practices. At this time, in the event that Congress does not act, the administration should also take strong executive action consistent with its ample authority under law—for instance, by granting “significant public benefitparole in place to individuals who perform work that Trump’s Department of Homeland Security deemed essential to the critical infrastructure of the country as well as to their spouses and minor children.

Conclusion

The executive actions described above—and even the tailored legalization bills—would not eliminate the need for the significant legislative reforms required to create an immigration system that is more fair, humane, and workable and that restores faith in the rule of law. Core features of such a system would include a generous and well-functioning legal immigration system responsive to the nation’s changing needs; an asylum and refugee system that guarantees humane and efficient processing without sacrificing fairness; a new paradigm for enforcement committed to proportionality, accountability, and due process; and a path to citizenship for undocumented immigrants and others who have long resided in this country. There must also be legal mechanisms, such as a rolling registry date, designed to prevent a recurrence of the current problem.

Collectively, these structural reforms will create an immigration system that lives up to the country’s best values, meets its realistic wants and needs, and is both capable of being followed and deserving of being enforced in a fair and just way. But the fact that legislative reforms are undeniably needed does not obviate the need or the justification for steady and aggressive use of executive authority permitted under law. In fact, the decades of legislative paralysis—and the national nightmare from which we will soon emerge—ultimately demand it.

Source: How Executive Action Can Build a More Fair, Humane, and Workable Immigration System

Canada must fight to retain talent after Biden enters White House, Macklem says

Good reminder that Canada’s comparative advantage in attracting skilled workers will decrease under the Biden administration:

Canadian governments must be ready to fight a potential brain drain south of the border in the face of a new U.S. administration, Bank of Canada governor Tiff Macklem said Tuesday.

Protectionist policies and attitudes stemming from U.S. President Donald Trump have helped make Canada a more attractive landing spot for global talent over the past four years.

But the advantage for international students and workers is likely to disappear as Trump exits the White House next month, Macklem said in a speech to the Greater Vancouver Board of Trade

He says being welcoming to newcomers can help boost the economy and increase exports in goods and services needed for a recovery from the COVID-19 pandemic and that Canadian schools and companies may have to fight harder to attract and retain talent after Joe Biden is sworn in as president.

But Macklem warns that fighting for talent isn’t enough on its own to create a sustainable recovery, noting that governments must also invest in infrastructure and remove internal trade barriers to help exports recover.

He says federal and provincial governments have co-operated often through the pandemic, suggesting it could finally lead to an end on inter-provincial trade hurdles that stymy the movement of goods, services and professionals.

Government infrastructure spending should focus on trade-enhancing infrastructure so exporters know there is a way to easily get their products to market, he said.

Macklem notes he met last month with leaders from several logistics companies who shared their concerns about bottlenecks, particularly at ports.

The recovery so far has seen the country recoup just over 80 per cent of the three million jobs lost during spring shutdowns and output is climbing closer to pre-pandemic levels.

Macklem says much of that rebound is being fueled by household spending, but the country will need to see a rise in exports and business investment if the recovery is to be sustainable.

The path exports take will rest on global forces, Macklem says, including whether international co-operation on vaccines and distribution break through protectionist policies.

“Obviously, we all hope that real life turns out closer to the optimistic scenario than the pessimistic. But hope is not a strategy,” reads the text of Macklem’s speech.

“We need to think strategically to increase the odds of a strong trade recovery.”

The last time Canada climbed out of a recession following the 2008-2009 global financial crisis, Macklem was the second-in-command at the central bank.

Even though Canada’s recession was neither as long nor as deep as other countries, domestic exports took a sharper dive. As Macklem noted in his speech, global exports fell less than 20 per cent at the time, while Canadian exports dropped by close to 30 per cent.

The reason was a combination of weak foreign demand, particularly from our biggest trading partner in the United States, Canada’s reliance on the U.S. and other slow-growth markets instead of emerging economies largely, and a lack of competitiveness.

But while the period before that crisis was relatively positive for trade, Macklem says the same can’t be said this time around, pointing to trade disputes started by Trump.

As well, Canada’s trade in services, such as tourism, haven’t recovered as well as goods such as automobiles, even though service exports had been growing faster than goods.

What’s needed is for companies to think about what products are in demand in fast-growing markets, Macklem says. He pointed in his speech to digital services like online education and e-commerce, or applying new technology to traditional sectors.

He also says the export potential for green technology is high given global concerns about climate change.

Source: Canada must fight to retain talent after Biden enters White House, Macklem says

The road to fix America’s broken immigration system begins abroad

Interesting take but not sure how realistic or how high it will be on the priority list compared to more immediate reversals of Trump immigration changes;

Being an immigrant in the United States in the past few years has been difficult, to say the least. The toxic rhetoric against immigration coming out from the White House from day one of the Trump presidency—and the fact that it enjoyed popular support by the Republican base—made many of us rethink whether it was time to simply leave this country for good. Perhaps the most salient feature of Trump’s legacy was that he and his policies put in doubt whether America will continue to hold on to its self-proclaimed title of “a country of immigrants.”

 

 

 

To summarize what the Trump administration’s anti-immigration rhetoric and policies consisted of is: Simply put, there is no place for immigrants in America. Over the past four years, over 400 executive actions directly targeted immigration and immigrants of all backgrounds. It was not only about illegal immigration, and it was not only about unskilled foreign workers. It was a full-fledged attack on immigrants across the board.

At first, the White House went against immigrants from Muslim-majority countries in a move that many analysts early on categorized as racist. Then the White House attacked undocumented immigrants, categorizing them as criminals (despite there being abundant evidence contesting such claims) and calling for a more active deportation policy. Next, the Trump administration cut the number of admitted refugees to the United States to its lowest level in 40 years, and actively established inhumane policies to deter refugees crossing from Central America, such as separating minors from their parents and putting them in cages. Finally, claiming without evidence that the ultimate goal was protecting American jobs amid the pandemic, the Trump administration restricted the issuance of green cards and work visas for highly skilled individuals (a move that me and co-authors estimate cost over $100 billion dollars to the U.S. economy almost overnight).

One of the most obvious deductions of what we saw in the past four years is that without a robust institutional binding framework in place to administer global migration flows, any future president could do and undo as he or she pleases.

With the election of Joe Biden and Kamala Harris, most of the world can be relieved that this circus of nonsense anti-immigration policies will come to an end. At least for now. To me, one of the most obvious deductions of what we saw in the past four years is that without a robust institutional binding framework in place to administer global migration flows, any future president could do and undo as he or she pleases. The truth is that there is too much at stake to let that happen: not only the livelihoods of about 250 million immigrants in the world—50 millions of them in America—but also the well-being of the global economy that partly relies on the hardworking and entrepreneurial spirit of immigrants wherever they are.

With the likely scenario of a Republican-controlled Senate, a divided government will make it nearly impossible for the incoming Biden-Harris administration to pass comprehensive immigration reform of the sort that the U.S. needs. For instance, offering a practical and a just path to citizenship to millions of undocumented immigrants—including Dreamers—is a win-win policy: By eliminating once and for all the uncertainty of an imminent deportation, these immigrants will be more likely to make long-term investments in their children’s education, their communities, and their businesses. In addition, the government must get rid of the arbitrary yearly limit of 65,000 H-1B visas for high-skilled foreign workers, or at the very least, it must allow for the cap to increase along with the demand for skills. A similar case can be made about limits to refugee admissions. Ongoing unresolved conflicts and climate change will likely continue to push entire communities to flee their homes in search of refuge somewhere else. Furthermore, reforms such as offering permanent residence or a path to citizenship to foreign students who complete graduate school in the U.S. would also be smart policy.

But, realistically, we are unlikely to see an ambitious domestic agenda on comprehensive migration reform in the next four years. Hence, it makes sense for the incoming administration to put efforts into the international arena where, without the need for Congressional involvement, important steps can be made to construct an ambitious and robust global governance apparatus for international migration, which could serve as an important stepping stone for a domestic comprehensive migration reform down the road.

In this context, the very first action item for the Biden-Harris administration is to rejoin the United Nations’ Global Compacts for Migration and for Refugees, which despite being not much more than a multicountry declaration, under the right leadership, it can serve as the basis for establishing a system of global governance with practical policies to administer migration flows. For instance, expanding bilateral or multilateral agreements to include Global Skill Partnerships, so that immigrants can receive training before moving to better satisfy the demand for certain skills in their future destinations, or establishing an international rule system to govern refugee resettlement using market-like mechanisms, to name a couple. These practical global or regional agreements inspired by the Global Compacts should be the basis for a robust and comprehensive institutional framework to govern international migration, such as what we currently have for global trade, for example, embodied in the World Trade Organization.

If there’s something we’ve learned during the global pandemic, it is that in order to better deal with the challenges ahead, we need more—not less—global governance and cooperation. This is even more relevant when it comes to immigration, a global flow that will continue to grow. Thus, if the U.S. cannot fix its immigration system at home, it must again lead the way to bring the world together on designing and putting forward the best policies to let immigrants, wherever they are and wherever they come from, achieve their full potential. And for that, the work begins abroad.

Source: The road to fix America’s broken immigration system begins abroad

Universities urge Biden to end curbs on foreign students

Not surprising and warranted with respect to the curbs:

Ted Mitchell, president of the American Council on Education (ACE), has written to United States President-Elect Joe Biden and Vice President-Elect Kamala Harris on behalf of 43 US university associations calling on them to move to ensure that American colleges and universities are “once again, the destination of choice for the world’s best international students and scholars”.

To accomplish this aim, Mitchell says the Biden administration should move to: 

• Withdraw the proposed regulations that would limit an international student’s ‘duration of status’ and create a fixed duration of admission. Mitchell says there is no evidence to suggest that such a restriction is required or that the issues raised cannot be addressed through the existing Student and Exchange Visitor Program.

“The amount of time the Trump administration proposes to give students is less than the average amount of time it takes an international student to complete his or her education. Such a policy is not fair to international students or institutions,” Mitchell says. 

• Withdraw the interim final rules and the proposed rule that make it harder and more expensive for individuals to receive H-1B visas. These new requirements imposed by both the Department of Labor and the Department of Homeland Security were finalised without allowing for public comment, Mitchell says. 

“The business and higher education communities vigorously oppose the proposed rules, and two lawsuits have already been filed to block them. In addition, the proposed rule regarding subject caps will make it difficult for recent international students graduating from US institutions to participate in the H-1B programme.” 

• Make clear that the Optional Practical Training (OPT) programme remains in place as it was at the end of the Obama administration. The Trump administration’s constant signalling that it might change OPT created a serious disincentive for students to enrol in post-secondary education in the United States, Mitchell says. 

Most international students see the OPT programme as a transitional stage to obtaining an H-1B visa. More than 5,000 assistant professors and over 1,700 research associates hold H-1B visas, according to an online visa tracker. The H-1B visa programme is one of the very few pathways for foreign-born researchers to remain in the United States on a long-term basis. 

The demands are among a list of steps that Mitchell says “could and should” be undertaken quickly by the new US administration once it is sworn in in January.

In the open letter, ACE President Mitchell says: “First and foremost, we welcome and applaud the announcement that the Biden administration will move quickly to reinstate the Deferred Action for Childhood Arrivals (DACA) protections that the Trump administration repealed. 

“We hope that your administration will take steps to make the DACA protections permanent and will work with you to support whatever measures are necessary to accomplish this worthy goal.”

An estimated 450,000 undocumented immigrants are college students and about half of those are eligible for the DACA programme.

In addition to DACA, Mitchell said the associations believe that the Biden administration should take immediate action in a number of areas to terminate, revise or replace a number of decisions that the Trump administration has put in place regarding higher education. 

He called on the Biden administration to work with all stakeholders to address “aspects of the Title IX regulations [the law against sex discrimination in education provision] that are deeply problematic and that micromanage campus processes in an inflexible manner and undermine college and university efforts to effectively, fairly and compassionately address the problem of campus sexual assault”. 

In particular, Mitchell said, the administration “should eliminate the mandate for a live hearing with cross examination, which could have a chilling effect on the willingness of survivors to come forward and raises serious concerns about re-traumatisation”.

Foreign gift reporting requirements

He also demanded a halting of the expanded reporting requirements, including the new Information Collection Request (ICR) and Notice of Interpretation (NOI) on Section 117, which relates to conditions of transparency and reporting of institutions’ foreign gifts or contracts worth US$250,000 or more. 

The higher education associations regard the new interpretation imposed by the Department of Education as part of an effort to expand those reporting requirements beyond existing requirements. The ACE letter says the Higher Education Act prescribes the information that institutions are required to disclose, and, in the absence of a regulation, the Education Department has no authority to impose new requirements beyond those in statute. 

The letter also accuses the Trump administration of launching “politically motivated” investigations of higher education institutions conducted by political appointees. Examples given include investigations launched by the department’s Office of the General Counsel of “racism at Princeton” and “academic freedom at UCLA”.

Mitchell said: “The [Education] Department’s response to instances of insufficient institutional reporting should have focused on reporting remediation to enhance the intended transparency rather than launching investigations that forced institutions to invest scarce resources in responding to burdensome document requests that sought information beyond the statutory authority.”

Limits on the effectiveness of student aid

Mitchell called for the withdrawal of the interim final rules regarding the eligibility of higher education students for funds under the Coronavirus Aid, Relief and Economic Security or CARES Act. Mitchell said this rule “contradicts congressional intent as to which students should be eligible for the Higher Education Emergency Relief Fund and limits the effectiveness of such aid”.

In order to “enhance the integrity” of student aid programmes, he called on the Biden administration to rewrite the rules to protect the risk to students and taxpayers and ensure that students’ financial aid eligibility is limited to “quality programmes”.

The letter calls for the reinstatement of Obama-era guidance on the use of race in admissions and the immediate termination of the Department of Justice’s “unprecedented demand that Yale University cease any consideration of race in its admissions practices”. 

Mitchell says: “There is no evidence that Yale is in violation of Supreme Court decisions that bear on this issue.”

Similarly, ACE calls on the Department of Justice to withdraw its support for the plaintiffs in Students for Fair Admissions v. Harvard

“The trial and appellate court decisions, both of which found for Harvard, have established a clear and compelling record that Harvard is in no way violating the law,” Mitchell says.

The letter also calls for the repeal of the Executive Order on Improving Free Inquiry, Transparency and Accountability at Colleges and Universities and the portion of regulations related to that order included in the Education Department’s 23 September 2020 final rule, “Direct Grant Programs, State-Administered Formula Grant Programs…” 

Mitchell said: “Colleges and universities are committed to free inquiry and academic freedom. It is improper for federal officials, including those at the Education Department, to insert their own political judgments about what speech should or should not be permitted on campus. 

“In fact, federal law specifically prohibits the Education Department from interfering in academic matters.”

Mitchell also demanded the repeal of the president’s Executive Order on Race and Sex Stereotyping. “Needless to say, colleges and universities are totally opposed to race and sex stereotyping, but the executive order is sweepingly overbroad and has chilled the implementation of critical diversity training programmes that ensure more respectful and productive work and learning environments,” Mitchell writes.

Source: https://www.universityworldnews.com/post.php?story=20201128102119141

Biden Wants Census To See ‘Invisible’ Groups: LGBTQ, Middle Eastern, North African

Of note:

As the incoming Biden administration prepares for office, the Census Bureau is already looking ahead to changes for the 2030 count.

While Biden’s transition team has not announced any specific policies yet for the next once-a-decade tally of the country’s residents, the president-elect’s campaign has previewed what could end up on the new administration’s agenda. They include ideas that gained steam during the Obama administration but stalled after President Trump took office.

Biden will direct federal agencies to “improve their collection efforts, including enhancing demographic information around race, ethnicity, sexual orientation, gender identity, and disability status,” Jamal Brown, the national press secretary for the Biden-Harris campaign, told NPR in a statement before the election.

Here are two specific policy proposals that could change how LGBTQ people and people with roots in the Middle East or North Africa can identify themselves for the next census and future federal surveys, and could give policymakers and researchers better insight into the U.S. population.

Census questions about sexual orientation and gender identity

One proposal by the Biden campaign would require the Census Bureau to gather voluntary information about people’s sexual orientation and gender identity through its census forms and survey questionnaires — a policy that Vice President-elect Kamala Harris supported as a senator.

There are currently no reliable national-level data about how many LGBTQ people live in the U.S., and that, many public policy experts say, makes it difficult to know whether the government is fully meeting the needs of LGBTQ groups. A change on this year’s census form is expected to generate the most comprehensive demographic information to date about same-sex couples who live together in the U.S., but other LGBTQ groups, including transgender and non-binary people, will be left out.

During the Obama administration, four federal agencies asked the bureau to start asking a sample of households questions about sexual orientation and gender identity on the bureau’s American Community Survey. That survey, which goes out to about 1 in 38 households every year, is considered a testing ground for the decennial census, which every household has to complete.

The Census Bureau, however, stopped working on the request after the Trump administration came into office, specifically after the Justice Department — which had said it needed the data to better enforce civil rights protections for LGBTQ people — backed down from its ask.

Under federal law, the bureau cannot release any census information identifying individuals until 72 years after it is collected. It can, however, put out anonymized data about demographic groups at levels as specific as neighborhoods.

Some data privacy experts have flagged concerns that this data could be used against LGBTQ people.

Biden’s campaign website says that the president-elect will “ensure” that federal agencies collecting data on sexual orientation and gender identity are “vigorously enforcing appropriate privacy protections.”

Meanwhile, the Census Bureau has started conducting research on potential questions and response options on the Current Population Survey it carries out monthly for the Bureau of Labor Statistics.

Cultural and generational differences in how people describe their sexual orientation and gender identity make the wording on forms especially key to avoiding undercounts and overestimates of LGBTQ people, a working group formed by federal agencies during the Obama administration found.

A census check box for people with Middle Eastern or North African roots

Another Biden campaign proposal is creating a new category on census forms for people of Middle Eastern or North African (MENA) descent, including Arab Americans.

A person with “origins in any of the original peoples of Europe, the Middle East, or North Africa” is officially categorized as white in data about race and ethnicity released by the Census Bureau and other federal agencies, according to the U.S. government’s current standards.

Some advocates for MENA groups in the U.S., however, have long pushed for a check box of their own on census forms.

In a report about research on collecting race and ethnicity information, Census Bureau researchers wrote that in 2010, focus group participants with Middle Eastern or North African roots “often did not know how to respond and/or felt excluded” when presented with the current census racial categories, which are set by the White House Office of Management and Budget.

Including the terms “Lebanese” and “Egyptian” as examples under the white racial category — as they were on this year’s census form — was seen as “wrong or incorrect” by the focus group members.

During the Obama administration, the bureau recommended creating a separate response option for “Middle Eastern or North African” on the 2020 census form as part of a broader overhaul of the questions about race and Hispanic origin. The change would have likely produced more accurate data about people with MENA origins, while shrinking the share of people checking the “White” or “Some other race” box on the census, the bureau’s testing in 2015 suggests.

But the efforts to create a MENA category stopped in 2018 under the Trump administration. After decades of waiting for the addition, the move was bittersweet for some longtime advocates who were worried about how the rollout could have been perceived in the wake of Trump issuing travel bans that targeted people from Muslim-majority countries in the Middle East and North Africa such as Iran, Libya, Syria and Yemen.

Still, earlier this year, that decision prompted an awkward exchange between Census Bureau Director Steven Dillingham, a Trump appointee who joined the bureau in 2019, and Rep. Rashida Tlaib, a Democrat from Michigan whose parents are Palestinian immigrants to the U.S.

“Dr. Dillingham, do I look white to you?” Tlaib asked in February during a House Oversight and Reform Committee hearing on the census.

“Congresswoman, I think that if you tell me what you identify with,” Dillingham replied, “I think I would respect that.”

Tlaib went on to describe how the decision to not move forward with a MENA category for the 2020 census will make people living in the U.S. who identify as Middle Eastern or North African “invisible” for the next 10 years when new census data are used to distribute federal funding, conduct health research and determine what kind of language assistance communities need.

“Director,” Tlaib pushed back, “we need to get it right because I’m not white.”

Getting a MENA category right on the census will require the bureau to work through how to represent the diversity among people with origins in regions that have no universally agreed-upon borders.

Among the suggestions the bureau has received so far are to highlight “Kurdish” as an example of a transnational group and to include “Israeli” as an example to encourage people born in Israel or with Israeli ancestry to identify with the category on the form.

Source: Biden Wants Census To See ‘Invisible’ Groups: LGBTQ, Middle Eastern, North African

A Biden Immigration Policy: New Hope For Immigrants And Businesses

Good overview. Money quote: “The simplest rule Joe Biden and his team may follow on immigration policy would be to ask: What would Stephen Miller and Donald Trump do? And do the opposite.”:

Joe Biden is the next president of the United States. Unless Democrats win two runoff elections in Georgia, Biden may not have a Democratic majority in the Senate, making ambitious immigration legislation more challenging. Despite that, Joe Biden will have an opportunity to enact significant changes to U.S. immigration policy.

Legal Immigration: By 2021, Donald Trump will have reduced legal immigration by up to 49% since becoming president – without any change in U.S. immigration law, according to a National Foundation for American Policy (NFAP) analysis.  Reducing legal immigration most harms refugees, employers and Americans who want to live with their spouses, parents or children, but it also affects the country’s future labor force and economic growth: “Average annual labor force growth, a key component of the nation’s economic growth, will be approximately 59% lower as a result of the administration’s immigration policies, if the policies continue,” according to the NFAP analysis. Reversing these policies could be a vital part of the Biden immigration agenda.

High-Skilled Immigration: If the Biden administration understands only one thing about business immigration, it should be this: H-1B visas are inextricably linked with the ability of highly educated people to become employment-based immigrants and eventually American citizens. Restrictions on H-1B visas can prevent the next potential founder of a billion-dollar company from gaining a green card and certainly will hurt international students. In addition to academic research that shows imposing H-1B restrictions push more jobs outside the United States, the country’s future can be affected in other ways: 75% – 30 out of 40 – of the finalists of the 2016 Intel Science Talent Search had parents who worked in America on H-1B visas.

Legislative reforms could make it easier for individuals to gain permanent residence without an H-1B, but until that happens (if it ever does), an H-1B will remain the only practical way for many people to work long-term in the United States, including international students. Approximately 75% to 80% of fulltime graduate students in key technology fields at U.S. universities are international students.

H-1B visa holders understand that H-1B status is part of the American Dream for many outstanding future immigrants, which is why Stephen Miller, the chief architect of the Trump administration’s immigration policies, focused so much energy on restricting H-1B visas.

The Trump administration did not pursue “merit-based” immigration. “Denial rates for new H-1B petitions for initial employment rose from 6% in FY 2015 to 29% through the second quarter of FY 2020,” according to a National Foundation for American Policy analysis. An April 2020 proclamation blocked the entry of legal immigrants to the United States in nearly all categories, including employment-based immigrants. Before a judge issued a preliminary injunction against it in October, a June 2020 proclamation suspended the entry of foreign nationals on H-1B, L-1 and certain other temporary visas.

In October 2020, the Trump administration issued three new regulations that would profoundly change – and broadly restrict – H-1B visas:

–       The Department of Labor’s (DOL) rule that inflates salaries for H-1B visa holders and employment-based immigrants.

–       The Department of Homeland Security’s (DHS) H-1B rule that changes the definition of a specialty occupation and seeks to codify restrictions against companies whose H-1B employees conduct work at customer locations.

–        A rule to eliminate the H-1B lottery and replace it with a highest-to-lowest salary system likely to shut out international students and younger information technology (IT) professionals.

Legal challenges to the regulations may tell much of the story of the Trump administration’s legacy on H-1B visa policy. Companies will be relieved if a Biden administration returns U.S. Citizenship and Immigration Services (USCIS) policies to those of the Obama administration. There is a reasonable chance that will happen.

USCIS and State Department Processing: “One barrier that will be hardest to break is the enormous backlog with both USCIS and State,” said Jeffrey Gorsky, senior counsel at Berry Appleman & Leiden and a former State Department attorney, in an interview. “While Biden is likely to shift resources from enforcement to adjudication, it may take a year or years to burn through the piles of unfinished work. For the State Department, once normal processing resumes, bearing in mind that some of this suspension is due to legitimate Covid-19-related concerns and not just immigration restrictions, it may increase the visa wait times by 6 months to a year.”

A priority at USCIS should be to rescind memos that have slowed processing, increased Requests for Evidence and made it more difficult to gain approval of previously-approved applications, such as the 2017 memo that no longer provided deference to previous adjudications. Putting the USCIS fiscal house in order will take a combination of a more reasonable fee rule, using the authority Congress provided for premium processing and a legislative funding or loan package.

Executive Orders, Proclamations and Regulations: Analysts believe if the Biden administration is smart, it will make a clean break from the Trump era by undoing all executive orders and proclamations on immigration that are not directly tied to health concerns related to Covid-19. That would include the most high-profile measures, such as the ban on the entry of individuals from primarily Muslim countries. Undoing the April 2020 immigration proclamation would allow immigrants in the family-sponsored and Diversity Visa categories to enter the United States, once State Department processing is normalized. Reversing regulations, most notably the public charge rule, may take more time and be influenced by court rulings.

H-4 EAD and Per-Country Limits: For years, the Trump administration has placed a proposed rule on the regulatory agenda to rescind an existing regulation that allows many spouses of H-1B visa holders to work – called H-4 EAD (employment authorization document). The administration could still attempt to take some restrictive action before Donald Trump leaves office.

A priority for the Biden administration should be to fix processing for H-4 EADs. In a recent lawsuit, plaintiffs argued H-1B spouses cannot renew their H-4 employment authorization documents because USCIS added an unnecessary biometrics requirement and adopted an erroneous interpretation of government regulations by prohibiting automatic extensions of H-4 work authorization.

Biden’s immigration policy document mentions eliminating the per-country limit for employment-based immigrants. Due to per-country limits, an employment-based green card applicant from India can potentially wait decades before gaining permanent residence. Legislation to address the problem passed the House of Representatives, but a series of demands by senators, the latest beings Senator Rick Scott (R-FL), first slowed then blocked the bill. It is unclear whether anything will change this Congress but if major immigration legislation moves next year, fixing the per-country limit is likely to be included. Another standalone bill may be possible as well.

DACA and Dreamers: Over the past four years, it took a great deal of legal activity, including a Supreme Court ruling, to protect the legal status of more than 600,000 recipients of the Obama administration’s Deferred Action for Childhood Arrivals (DACA) program. Joe Biden said protecting Dreamers will be a priority. How he protects them will matter.

Biden administration attorneys will need to decide if keeping the current program intact is the best approach legally or if a different administrative approach would work better. Continuing protections for DACA recipients is favored by a 2-to-1 margin among voters, according to poll results released by FWD.us. That does not mean a legislative solution will be easy, particularly one that goes beyond DACA recipients, which the Biden campaign has said he will pursue. Even if Democrats control the Senate at some point during the next four years, some compromise on the scope of a legislative solution (i.e., how many unauthorized immigrants, other immigration measures) is expected to be necessary for a bill to become law.

International Students: The Trump immigration team made it a priority to break the link between international students and their ability to work in the United States after graduation. The DOL and DHS H-1B rules, along with along with eliminating the H-1B lottery, would make it much more difficult for international students to work in America after completing their studies, say universities. “For students considering a degree abroad, 62% mentioned that being able to work in the country following the degree is very important,” according to a survey of international students by Studyportals.

The comment period ended last month on a significant proposed rule, opposed by U.S. universities, to limit the period of stay for international students. New enrollment of international students in the U.S. has fallen for years (while rising in other countries), and this rule would drop U.S. levels lower. Generating uncertainty as to whether students can complete their studies in the U.S. is a good way to ensure they won’t come to America in the first place. Research has found the proposed student rule is based on flawed DHS reports on student overstay rates. A Biden administration may need to decide what to do with this rule.

Refugees, Asylum and TPS: The first immigration challenge of the Biden presidency could be how to address asylum seekers at the southern border. Biden has pledged to end the process that has forced tens of thousands of asylum seekers to live in camps in Mexico. Ending the camps with an orderly process and providing a set of new procedures that will affect other asylum seekers may need to be accomplished quickly. The priority will be to ensure human rights and avoid scenes of overwhelmed Border Patrol agents. It would be a disaster if after campaigning against “kids in cages,” a shorthand reference to the Trump administration’s family separation policies, a Biden administration created anything remotely similar.

Biden officials should consider solutions that allow refugees to be interviewed outside the United States, including in their home countries, and develop solutions to enable individuals to work legally in the United States at jobs that do not require a high school degree, similar to, or even including, H-2B visas. Not everyone fleeing danger may qualify for asylum, but offering opportunities to earn a living in safety may be a desirable alternative, and it can take place in an orderly fashion.

The Biden administration is likely to pursue unraveling Trump administration rules and Bureau of Immigration Appeals decisions that restrict asylum. That includes a Centers for Disease Control and Prevention (CDC) order that expels individuals before they are allowed to apply for asylum. Reforms to the system of immigration judges, including legislative reforms to make immigration courts independent, may be on the agenda.

Joe Biden’s immigration policy document states, “He will set the annual global refugee admissions cap to 125,000, and seek to raise it over time commensurate with our responsibility, our values, and the unprecedented global need.” Donald Trump reduced the annual refugee ceiling by over 86%, down to 15,000 in FY 2021, compared to 110,000 in the final year of the Obama administration. Biden has the authority to adjust the annual refugee ceiling after taking office, although rebuilding refugee processing and resettlement will take time.

“Order an immediate review of Temporary Protected Status (TPS) for vulnerable populations who cannot find safety in their countries ripped apart by violence or disaster,” is cited in the Biden policy document. Biden mentioned TPS for Venezuelans during the campaign, but hundreds of thousands of individuals from other countries, primarily from Central America, have lived in the United States for years and seen their TPS status ended by the Trump administration. The document mentions including such individuals in a possible legislative solution.

Startup Visas: Startup visas is a modest, bipartisan legislative idea that could see renewed interest, given the need for job creation. It was part of an immigration bill that passed the U.S. Senate in 2013. The United States does not have a startup visa for foreign-born entrepreneurs. A National Foundation for American Policy reportfound the federal startup program in Canada has helped create jobs, as has a program run by the province of Quebec. The U.K, Australia and New Zealand also have startup visas. The Trump administration attempted to rescind a modest effort to allow foreign entrepreneurs to stay in the U.S. via parole.

A Difference in Tone: During the final days of his presidential campaign, Donald Trump warned people in Minnesota that Joe Biden would turn their state into a refugee camp. Immigration and Customs Enforcement (ICE) plastered the faces of dark-skinned immigrants on billboards in swing states. Building a wall to keep out foreigners remained one of the federal government’s top priorities. That will change in a Biden presidency: The ICE billboards will come down, and construction crews on the border wall will go home.

The difference between the two presidents’ rhetoric on immigrants and refugees should be night and day. “Generations of immigrants have come to this country with little more than the clothes on their backs, the hope in their heart, and a desire to claim their own piece of the American Dream,” reads the Biden immigration plan. “It’s the reason we have constantly been able to renew ourselves, to grow better and stronger as a nation, and to meet new challenges. Immigration is essential to who we are as a nation, our core values, and our aspirations for our future. Under a Biden Administration, we will never turn our backs on who we are or that which makes us uniquely and proudly American. The United States deserves an immigration policy that reflects our highest values as a nation.”

What will be the guiding principles of a Biden-Harris administration on immigration? Stephen Miller spearheaded the Trump administration’s immigration agenda, working tirelessly to move the United States as close as possible to a policy of zero immigration. The simplest rule Joe Biden and his team may follow on immigration policy would be to ask: What would Stephen Miller and Donald Trump do? And do the opposite.