Biden Looks to Revamp Immigration After Trump Shakeup

President-elect Joe Biden says he will promptly do away with some of President Donald Trump’s executive orders on immigration and return to the enforcement priorities of the Obama administration.

Honduran asylum seekers are taken into custody by U.S. Border Patrol agents in December 2018 after crossing the border wall into San Diego from Tijuana, Mexico. (AP Photo/Moises Castillo, File)

(CN) — A beacon for refugees and asylum seekers no more, the U.S. under the Trump administration has all but barred those groups from the country and created myriad hurdles for employers to hire foreign workers. Yet the bedrock routes to permanent residency and naturalization remain unscathed.

From the so-called Muslim travel ban he rolled out in his first week in office, to his use of the pandemic as grounds to immediately kick out 200,000 people who crossed the southwest border without hearing their asylum claims, Trump has carried out his no-holds barred approach to limiting immigration with more than 400 executive actions.

President-elect Joe Biden says he will promptly do away with some of those executive orders and return the country to its traditional focus on family values by supporting legislation to allow family members of lawful permanent residents, known as green card holders, to more quickly unite with their loved ones in the U.S.

He’ll also encourage immigrant contributions he says are essential to the economy by pushing for removing caps on the number of employment visas given to recent graduates of science, technology, engineering and math doctoral programs.

The pandemic has highlighted the value of immigrant entrepreneurs to America, advocates say.

The leaders of the U.S.-based Covid-19 vaccine developers Pfizer and Moderna are immigrants. So is the CEO and founder of Zoom Video Communications and the founder of the grocery delivery company Instacart.

Despite Biden’s pledge to revamp U.S. immigration policy, it’s not one of his top priorities.

“If you look at Biden’s transition website … the top priorities are Covid-19, economic recovery, racial justice and climate change,” said Dorsey & Whitney business immigration partner Ieva Aubin during a webinar this week on immigration law outlook for 2021.  

The most controversial of Trump’s immigration moves was his zero-tolerance policy of prosecuting all illegal border crossers, which resulted in thousands of children, some younger than 5, being removed from their parents, and caused international outrage before it was blocked by courts.

Led by White House senior adviser and immigration hawk Stephen Miller, the Trump administration admitted just 11,814 refugees in fiscal year 2020, the lowest number since the U.S. refugee resettlement started in 1980, according to the nonpartisan Migration Policy Institute.

Trump also completely transformed the landscape of employment-based immigration through his 2017 “Buy American, Hire American” executive order, said L.J. D’Arrigo, a partner with the New York firm Harris Beach, who has one of the largest seasonal visa practices in the country.

D’Arrigo said the order stems from the widely held but misguided belief that businesses hire foreign workers because they are cheaper than U.S. workers.

“In reality it’s so much more expensive to hire a foreign worker than it is to hire a qualified U.S. worker,” D’Arrigo said. “Because when you factor not only the legal fees for preparing the visa process, but also the significant government filing fees, it just does not make financial sense from a business perspective.”

He added, “So you’ve got to really inquire beyond that rhetoric and say, ‘Why is it that a business would want to hire a foreign worker and pay that money to bring them over if it really weren’t a true business need?'”

Though many of Trump’s rapid-fire employment-immigration rule changes have ultimately been blocked by courts, immigration attorneys have to keep up with them.

“When I start work in the mornings, the very first thing I do is see what’s changed overnight,” D’Arrigo said in a phone interview. “Because something’s changed, whether it’s a policy interpretation or even where to file a certain application, something’s usually changed.”

Immigrants seeking asylum walk at the ICE South Texas Family Residential Center in Dilley, Texas, last year. (AP Photo/Eric Gay, File)

One of the latest Trump moves blocked by courts was a huge increase in the prevailing wages U.S. companies had to pay foreign workers.

One aspect of the rule change: It increased the salary companies had to pay an entry-level computer programmer with only a bachelor’s degree from around $70,000 to $206,000, according to D’Arrigo.

“Obviously no employer is going to be able to pay that … And that’s just one example of the obstacles that the government has thrown at businesses over the past four years, trying to dissuade them, or trying to make it impossible for them to hire a foreign worker,” he said.

The pandemic has led the Trump administration to ease one bureaucratic burden: U.S. Citizenship and Immigration Services now allows scanned signatures, which attorneys say eliminates the hassle of them getting their clients to sign every document before they mail them to the agency, as most immigration forms cannot be filed electronically.

“I think that may be one policy that is retained by the Biden administration,” said Robert Webber, a Dorsey & Whitney partner.

Even with all of Trump’s executive orders, the number of immigrants becoming naturalized citizens in fiscal year 2019 rose to its highest level in the past 10 fiscal years, with Trump’s policies spurring permanent residents to take the next step of citizenship.

And the number of people obtaining green cards has not significantly changed over the past 10 years, according to a Nov. 20 report by the Migration Policy Institute.

“With the exception of refugee admissions, there has not been a dramatic, across-the-board ‘Trump effect’ attributable either to the administration’s policies or rhetoric on immigration levels,” the report states.

But the pandemic has stemmed the flow of immigration to the country, as it closed U.S. consulates across the globe for months and stopped them from processing visa applications, resulting in a record low of permanent and temporary immigration to the U.S. in fiscal year 2020, according to the report’s authors Muzaffar Chishti and Jessica Bolter.

Biden says that unlike the Trump administration’s deportation practices in which anyone found to be in in the country illegally could be removed, he will return to the enforcement priorities of the Obama administration, deporting people convicted of violent crimes and national security threats.

Trump has also cracked down on employers, stepping up audits of employment eligibility forms and raids, including seven Mississippi chicken-processing plants on a single day in August 2019 in which U.S. Immigration and Customs Enforcements agents arrested 680 workers.

Biden, who served as Obama’s vice president for eight years, said he will end workplace raids.

“The farmworker that has no criminal background, they are basically going to leave them alone,” said D’Arrigo, the New York employment-immigration attorney.

Biden, like Trump, will be limited in the immigration rule changes he can make through executive order with a divided Congress. But if Democrats win control of the Senate in Georgia runoff elections next month, his goal of “providing a roadmap to citizenship” for the country’s estimated 11 million undocumented immigrants will be within reach.

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