Biden wants to Roll Back the Immigration Policy changes made by Trump. Will that be possible in his first four years?

There was a recent, very interesting article published by NPR that highlighted the problems that may be faced by the Biden administration (if he wins the election) in rolling back the changes implemented by the Trump administration. You can read the full article here.

While there were several possible barriers raised by the article that could stand in Biden’s way of changing such immigration policies, the biggest, and hardest barrier to break through, in my mind, is the culture that has been created at USCIS, ICE, CBP and other related agencies. According to the article:

“That isn’t something that’s a light switch. You can’t change culture within an organization that vast overnight,” says Angela Kelley, senior adviser to the American Immigration Lawyers Association. “So I agree that it’s going to be a long, long road.” 

CBP produced an ominous, fictionalized video on the Border Patrol’s YouTube channel that depicts a Latino migrant who had just escaped from agents, attacking and knifing a man in a dark alley. The video was released at a time when Trump has been stoking fears about violent immigrants at his campaign rallies. For an example of how the Border Patrol is marching lockstep with the White House, look to a video titled “The Gotaway,” posted earlier this month. 

NPR inquired why the video was made and why it was removed a week later before being re-posted. Border Patrol Chief Rodney Scott said in a statement that the video was produced “to enhance awareness that effective border security helps keep all Americans safe,” and it was briefly pulled because they misused copyrighted materials.

NPR, Morning Edition, September 14, 2020

Changing such a culture will take time. While changing those at the top will help change the policies the officers act under, getting those changes to be implemented by officers, and getting them to change their attitudes will take quite a while, especially at ICE and CBP. USCIS may be somewhat easier to crack as the officers there are not dealing with deportation or apprehending people on a daily basis and are not necessarily as hard lined (although, most likely, some are as well). Changing the policies at USCIS may be enough to allow officers to change the way they adjudicate cases without to much time passing.

Again, according to the article:

“I don’t think it’s realistic that Biden in four years could unroll everything that Trump did,” says Sarah Pierce, a policy analyst at the Migration Policy Institute, a nonpartisan think tank in Washington, D.C. 

“Because of the intense volume and pace of changes the Trump administration enacted while in office, even if we have a new administration, Trump will continue to have had an impact on immigration for years to come,” Pierce says.

NPR, Morning Edition, September 14, 2020

While, overall, it may take a long time to affect all these changes, I do think, that there are some basic policies that could be changed much quicker (in terms of USCIS). First, the requirement of an interview for all cases – that could be changed very quickly. In addition, some of the more hardline looks at H-1Bs could also be changed rather quickly, as could the removal of harmful Executive Orders that limit immigration. So there is a lot that could be done relatively quickly as well.

We must also remember, that, if Biden is able to get Congress on his side as well, and a new immigration law is passed, that could significantly increase the rate at which changes can be made both inside USCIS as well as inside ICE and CBP (if such a law limits their jurisdicition and ability to act inside the law).

Overall, it could take longer for many changes, especially those at the border to be fully put in place. While some changes, those that primiarily are implemented by USCIS, may be able to be implemented earlier. We shall see what happens in November and what happens in January, should there be a change of administration.

Immigrant Visa Backlogs and Congress: Can They Fix the Problem?

UnknownNot everyone realizes but there are huge backlogs of cases for employment based immigrant visas.  For about 1 year now the EB-1 category (Extra-ordinary Ability, Outstanding Professor and Researchers and Intra-Company Transferees) category has been backlogged about 1 year for most of the world and several years for China and about 4-5 years for India.  The EB-2 category, while current for most of the world, has been backlogged about 4 years for China and about 10 years for India.  The same is true of the EB-3 category.  For those from India and China especially, the requirement of having to wait 10 years or more for a green card is hard on the family.  It can cause children, who may be 2 or 3 when they arrive in the US, to age out before a green card can be obtained – forcing these now grown Children to either go home or get their own visas and begin their own processes.  Furthermore, the employees are working for years without hope of major pay increases or promotions, for fear of being fired (if they ask and are denied) and loosing their place in line.

Congress has been looking at ways of fixing this.  The most popular bill currently, that almost passed the Senate, would alleviate the issue by removing the per country limitations currently in place for employment based immigrant visas.  Currently, all employment based immigrant visas are divided among all countries in the world evenly. While the Department of State can reallocate some visas based upon usage patterns, no country can get more than 7% of the immigrant visas in any given category.  That means, for example, for EB-1 visas India can only get about 3,000 visas per year (and that includes visas for all dependents of the primary applicant (spouses and children).  The bill in congress would remove those limitation in steps and would put in place protections so those from other countries who already applied in the employment categories when the bill was filed, would not loose their place in line.  However, the effect of this bill would hit people from EVERY country.

Within 4-9 years all countries would be facing major backlogs in all categories.  While the current backlog would be cleaned out by then, there would still be significant delays for everyone.   Another bill, in addition to removing the per country limitations would also remove dependents from the visa count.  This means a family of 6 or a family of 4 would be counted as just one immigrant visa against the quota.  This would greatly help to reduce the backlog and would go a long way towards ameliorating the issues caused by just removing the per country cap.  This bill, however, would also raise the number of employment based immigrant visas, a portion of the bill that is unlikely to pass this Congress or, even if it were, to be signed by this President.  There are currently other Senators working at removing the increase in immigrant visas from the bill to try to make it more passable.

Overall, while all these bills try to tackle this issue, the problems with our current immigration system are fairly widespread.  Our immigration laws were written over 30 years ago now in many cases, and longer in some.   Many things have changed since then and a major overhaul is certainly in order.  However, because of the current polarization of our political system, it is doubtful that any such major reform could be passed anytime soon.  Therefore, smaller fixes are all we can hope for in the near term.  Hopefully congress can get together and put together a bill that will help everyone and help prevent the current backlogs we have.

Those interested in this issue can read a good article in The Washington Post here.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

28 Days and Counting

argueCongress only has 28 days left in its latest legislative session.  After that, they take a break for two months, and then, when they come back, the election season is on in full force and there is not much chance of anything of significance passing.  What does this mean for Immigration reform?  It means that every day that passes we are less likely to see anything done to reform our immigration system and modernize it with today’s realities.  This reform will not just allow more people to come to the US, but will hopefully, finally, allow USCIS to work in a more timely manner.

What is the chance that such reform will happen?  Well the most supportive Republicans put it at 50/50 at the best.  I think even that may be somewhat optimistic.  Many of the Republican politicians facing challenges from the right have distanced themselves from Immigration Reform to show that they are conservative.  The Democratic plan has little to no Republican support but there is no guarantee that Democrats will support a watered down version of their bill.  Democrats have also flatly refused to support cutting the bill into several smaller bills, which many Republicans have said is a necessity.

For all the above the chances of immigration reform happening this year seem to be dwindling rapidly.  While not gone, every day makes it less and less likely that anything will happen.

House Republicans release Immigration Reform principles

Just the other day House Republicans released what they called their principles for pursuing Immigration Reform.  These included creating a method for many of those in the US to illegally to legalize their status, the need to strengthen our border controls as well as our tracking systems for when non-citizens enter and leave the US, increasing the number of employers required to check immigration status for new employees, increasing the number of employment based immigrant visas and decreasing the number of family based immigrant visas, and the need to make it easier for those looking to work in the US to be able to do so, especially those who come to the US to attend college and then get frozen out of H-1Bs because of the cap.

Overall, while the principles look fairly good, there really are no details yet so we cannot tell what will or will not be any final bill.  However it now looks like there may actually be a final bill, which is a great improvement.  As those details become flushed out, we will update you.  For now, if you wish to read the actual principles and read a good article that summarizes what they say, follow this link.

 

 

House Judiciary Committee Chair Rep. Goodlatte held Press Conference on Immigration Reform

English: , member of the United States House o...
English: , member of the United States House of Representatives. (Photo credit: Wikipedia)

Rep. Goodlatte (R) held a press conference this morning regarding immigration reform efforts underway in the Senate.  While he stated that he welcomed such efforts, he also stated that the House Judiciary committee would be looking at Immigration differently.  The House will be dividing the legislation into separate bills so that Representatives can review and look at each aspect of immigration reform separately, as opposed to having one take it or leave it bill.  According to Rep. Goodlatte, the first two bills will be introduced tomorrow and will concern the agricultural worker program and mandatory e-verify provisions.  It should also be noted that Rep. Goodlatte does not support providing legal status to the thousands of people in the US without status at this time.

Considering Rep. Goodlatte’s previous stands on immigration, and considering the fact that the Senate, at this time, most likely will not consider piecemeal legislation, I think that this move makes it less likely that we will actually see immigration reform anytime soon.  While I sincerely hope that I am wrong, and I hope that this can be worked out, I am not as hopeful as I was even yesterday.  The primary issue is the fact that when each piece is separate, there is no guarantee that once one part is passed, the other parts will also be passed.  In other words, if the House passes mandatory e-verify, what is to stop Republicans at that point from voting against the pathway to citizenship, even if they previously agreed to support it?  I really see this move more as a way to end the immigration debate rather than as a way to move it forward.  The only hope I see is that there can be some compromise whereby the senate agrees to modify the bill somewhat in return for having it pass as one bill.  At this point, only time will tell.