Looking forward to removal of the “Invisible Wall”

As an immigration advocate, I breathed a sigh of relief when it became clear that Joe Biden will be our next President. For the last four years, there has been an unending assault of anti-immigrant policies and actions taken.  While there was much rightful attention given to the wall between the U.S. and Mexico, the Trump administration started building the “invisible wall” to reduce legal immigration. This did not just hurt the immigrants. It harms their U.S. citizen families and it damages our business by restricting the admission of skilled workers needed by our U.S. businesses. The invisible wall harms all of us by restricting the economic growth in the U.S.

There was an extended discussion of the Invisible Wall in an article published by the American Immigration Attorneys Association.  If you wish to read this it can be found here.

I will discuss in this article some of the expected changes that are likely to occur with the change of administration but note that there is much that I will have to discuss in the future – there is just too much change expected to include them in one article- even a long one as this is.

Deferred Action for Childhood Arrivals (DACA)

DACA was established in 2012 by the Obama-Biden administration to give temporary protection to the “dreamers” – people who had been brought to the U.S. as babies and children and had no legal status. Without DACA they could not work or obtain driver’s licenses and in many cases, could not further their education after completing high school. They faced the ever-present threat of deportation often to a country that they don’t remember and may not speak the language of their birth county. DACA gave these young aspiring citizens temporary relief that allowed them to move forward in their lives but was not and still is not a permanent solution to their irregular status.

The Trump Administration tried to eliminate the program in 2017 but the Supreme Court blocked this in June 2020. The Supreme Court ruling at that time said that the attempted DACA elimination was invalid because the administration failed to follow the proper procedures and failed to provide an adequate reason to justify ending DACA. DHS responded to the Supreme Court decision with a memo in July 2020 saying that new applications would not be accepted and renewals would be limited to one year.  On November 14th, 2020 a federal court ruled that the acting Homeland Security secretary was not legally serving when he signed these rules limiting the Supreme Court decision and that because of his illegitimate status as acting DHS secretary the rules were invalid.

USCIS has not yet responded to the court ruling but we are hopeful that soon new DACA applications can be filed and renewals should be issued for two years. The decision which eliminated the restrictions on DACA can be appealed but President Elect Biden’s list of the actions he will take in his first 100 days includes fully reinstating DACA. It also says that he will work to ensure that Dreamers are eligible for federal student aid programs including loans and Pell grants.

A permanent solution for the dreamers will need to be enacted by the legislature. While it is clear that there is bipartisan support for giving dreamers a path to citizenship, this has been blocked in the Senate. Hopefully this roadblock will be cleared soon so that our legislature will be able to provide permanent relief for Dreamers.

Temporary Protected Status (TPS)

TPS is a temporary immigration status provided to nationals of certain countries experiencing problems that make it difficult or unsafe for their citizens to be deported there. It was created in 1990 and it gives the DHS secretary the power to decide when a country merits the TPS designation. TPS may be granted because a country is in an ongoing armed conflict, an environmental disaster has occurred or other extraordinary conditions prevent its citizens from returning safely. It can be granted for 6- 18 months and may be extended if country conditions still support the designation.  We currently have TPS designation for Sudan, Nicaragua, Haiti, El Salvador, Nepal and Honduras. Please see my last blog – What is happening with TPS – for a discussion of the current status for each of those countries.  Many of the people with TPS status have been in the US for more than 20-30 years. They have been working legally, paying taxes, have married U.S. citizens and are raising U.S. citizen children – many of whom are now adults. Many have started their own businesses and have created jobs for U.S. citizens.  For most, their work authorization and TPS status expire on Jan 4, 2021, less than two months from now. We are hoping that this status will be automatically extended in the next few days but don’t have an announcement as to this yet.

The Biden platform calls for protecting TPS holders from being returned to unsafe countries. It also calls for a path to citizenship for those who have been in the U.S. for an extended time and built their lives here.  A path to citizenship will require legislative action which will require the Senate roadblock to be cleared.

President Elect Biden has committed to providing TPS status to Venezuelans, something his DHS secretary can do without Congressional Approval

The Muslim Ban

There have been three Executive Orders signed by Trump to ban foreign nationals from predominately Muslim countries. The one signed on Jan 27, 2017, and the one from March 6, 2017, were stopped by court order. The third version of the Muslim ban was upheld by the U.S. Supreme Court.

Because the ban was implemented via Executive order, it can be rescinded by Executive order. The Biden platform on this reads as follows:

The Trump Administration’s anti-Muslim bias hurts our economy, betrays our values, and can serve as a powerful terrorist recruiting tool. Prohibiting Muslims from entering the country is morally wrong, and there is no intelligence or evidence that suggests it makes our nation more secure. It is yet another abuse of power by the Trump Administration designed to target primarily black and brown immigrants. Biden will immediately rescind the “Muslim bans.”

Change of Mission statement of USCIS

Prior to 2018, the USCIS mission statement read “USCIS secures America’s promise as a nation of immigrants by providing accurate and useful information to our customers, granting immigration and citizenship benefits, promoting an awareness and understanding of citizenship, and ensuring the integrity of our immigration system.

In early 2018 USCIS adopted a new mission statement:

U.S. Citizenship and Immigration Services administers the nation’s lawful immigration system, safeguarding its integrity and promise by efficiently and fairly adjudicating requests for immigration benefits while protecting Americans, securing the homeland, and honoring our values.

The most significant changes were eliminating the reference to our customers (those who apply for benefits through USCIS) and elimination of the phrase – USCIS secures America’s promise as a nation of immigrants. These clearly show the anti-immigrant bias of the Trump Administration which attitude trickled down to those in USCIS making policy decisions and to those adjudicating applications and petitions.

The Biden immigration platform set forth on the joebiden.com website starts with “The Biden Plan for securing our Values as a Nation of Immigrants”. It acknowledges that immigration is not a threat but “an irrefutable source of our strength”. It further states that “Immigration is essential to who we are as a nation, our core values, and our aspirations for the future.” 

Let us hope that the USCIS mission statement is changed once again to be reflective of the U.S. as a nation that welcomes Immigrants and recognizes their value to the U.S. and that the new mission statement trickles down and influences the USCIS decisions going forward.

More to Come

This blog is more than twice as long as most of my blogs and I have only scratched the surface of what there is to say about changes that we are likely to see in the near future. Some of the changes can be made immediately by executive action and some can be enacted via regulatory change which will take a bit longer. Some, however, will require legislative action which may not happen (even with strong bipartisan support) without removing the roadblock in the Senate.  These actions may depend on the two run-off elections in Senate races in Georgia. If both of the seats are filled by Democrats, the legislative reforms have a good chance of being enacted.  If not, it may require substantial and sustained pressure from all of you to persuade the recalcitrant legislators to do what is right for the country.

Linda M Kaplan
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