Post-Election Immigration Update
Post-Election Immigration Update
Election week has come and gone, the votes have mostly been counted and recounted, and the American people have chosen to welcome a new President into the White House on January 20, 2021. This will likely bring a plethora changes in different areas of governance, but we will focus on what we know best, our bread and butter, Immigration.
FUTURE OUTLOOK
Regardless of one’s political persuasion, it is undeniable that the past four years have brought sweeping changes to our Immigration system. Under the Trump administration, we saw over 400 executive and regulatory actions taken on immigration. According to a study by the National Foundation for American Policy, by 2021 such actions will have reduced legal immigration by up to 49%. Despite promises to prevent dangerous immigrants from remaining in our country, few of the actions implemented actually targeted criminal behavior and protecting our communities. Rather, there have been restrictions on family immigration, long term “in-status” immigrants having their status revoked, extraordinary restrictions on essential highly skilled workers, and asylum standards being raised to near impossible-to-meet levels to name a few. With an average of almost 2 new changes per week, it has been a whirlwind keeping up!
It is likely that the changes in immigration policy will keep coming. President-elect Joe Biden has committed to reversing what he can of harmful immigration actions as early as day 1. Some changes will be more difficult to reverse requiring Senate approval, but these are some areas we expect to see changes.
DACA
DACA recipients, also known as “Dreamers”, have been on a roller coaster ride of changes over the past four years. Although the program started as an Executive Action under President Obama, it has gained bi-partisan support in the years since its implementation. The Trump administration ended the program in 2017, sparking litigation that eventually made it to the Supreme Court, who decided earlier this year that the program was unlawfully terminated. Despite the ruling of the Supreme Court, DHS still implemented restrictions on new applications to the program. However, just this past weekend on November 14, these restrictions were invalidated. What that means in the short-term is that new applications for the DACA program should begin to be accepted soon.
We anticipate the President-elect will make further changes to protect the DACA program. But what many hope for are substantive changes in law to give DACA recipients the opportunity to become US Residents and Citizens, and end the limbo-like existence they currently live in.
Public Charge Rule
Like a toxic relationship, the Public charge rule always comes back around just when you thought you had finally got rid of it; and it is back once more!
The rule has added extensive financial restrictions and invasive evidentiary requirements for individuals wishing to apply for permanent residency in the United States. In short, the goal is to restrict the ability to become a permanent resident from those who might possibly, at some point in the future accept a public benefit, not dissimilar to charging someone for a crime that they have not yet committed or may never commit. The rule has been challenged and struck down in multiple federal courts across the country, causing the requirement to submit public charge documents to be on again and off again more times than I can count. However, the President-elect plans to get rid of it once and for all.
ASYLUM AND FAMILY SEPARATION
There have been a number of dramatic and draconian changes that have negatively impacted individuals seeking asylum in the United States. The cruelest of these changes such as separating children from parents (permanently in the case of 666 children whose parents cannot be located), inhumane conditions of detention centers, and the Remain in Mexico program have been highlighted in the news. Less widely reported are the changes to the asylum process itself, elevating the standard of proof so high, that an actual grant of asylum would be near impossible. President-elect Biden has plans to reverse some of these changes, beginning with the program requiring asylum seekers to wait in Mexico without shelter or access to legal counsel, as well as providing aide to humanitarian groups assisting immigrants at borders.
Opinion
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The Immigrant and Immigration attorney community are looking forward to welcoming a President who has promised to improve our immigration system for the good of our country as a whole and for those who seek refuge in the United States. As a community we hope to see these promises enacted, as I learned at a young age, “with great power comes great responsibility.” The United States is a country with great influence around the world and with such comes responsibility to use that influence for good. My hope is that this change brings an end to the mistreatment of those trying to escape violence and a start to a new, fair, future for immigration. We are a nation made of immigrants and want to be a nation that continues to attract immigrants. We should be nation that continues to offer refuge to those in need. We need to be a nation that brings in special international talent to grow our economy and promote innovation. But that will take much more than merely restoring immigration to what it was before the Trump Administration, we must have an immigration system built for the changing world that we live in, the old system was not fit for purpose. We are hopeful that this is a step in the right direction, a step on a path that has been paved with daggers.
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