A First Look at the Biden/Harris Immigration Bill


Hours before he takes the oath of office, President-Elect Joe Biden released details of the immigration bill his administration will send to Congress.  The fact sheet distributed by his office reveals a bold bill that provides a pathway to citizenship for 11 million undocumented people in the US, with priority for Dreamers, TPS holders and immigrant farmworkers.  The bill seeks to make more visas available and expand migration opportunities for Science, Technology, Engineering and Mathematics graduates.  The proposed bill would eliminate the one year rule for asylum and the three and ten year bars which have been an impediment to so many people regularizing their status.  Regrettably, the bill does little to reform the detention and deportation edifice and fails to insulate the immigration court system from executive abuse.  However, it abandons the common feature of Democratic efforts to appeal to conservatives through an increased enforcement regime.  It does not seek to couple progress on immigrant opportunity with a crackdown on immigrant rights.

It seems necessary to say that the bill is not likely to pass a very divided congress in its current form.  Anything that comes out of Congress is likely to be the result of the give and take of legislation.  This comprehensive bill may be broken into several smaller bills.  It may get nowhere.  But it starts the debate on terrain very favorable to immigrants and we welcome this bill on Inauguration Day.

Lots will be written about the bill.  We are going to highlight some of the key features as we see it:

  • Legalization.  The bill seeks to legalize up to 11 million people by creating a temporary status that allows for residence after five years.  Three years after that, currently undocumented immigrants would be able to apply for citizenship.  This benefit would apply to those present in the US as of January 1, 2021.  Notably, the physical presence requirement would be waivable for anyone deported during the Trump administration for family unity or humanitarian purposes.
  • Dreamers, TPS holders and farmworkers would be eligible for immediate residence.
  • Asylum. The bill eliminates the dreadful one year rule that bars asylum to anyone who did not file for asylum within one year of entry.  This inflexible provisions has caused many deserving refugees from getting asylum.
  • Elimination of the unlawful presence (“three and ten year”) bars.  These bars have been an impediment to people fixing their status  Individuals who have been unlawfully present in the US for more than six months and who depart the US have been barred for returning under this rule.  While there is a waiver for the bars, it does not help everyone.  By eliminating the three and ten year bars, many people will be able to regularize their status.
  • Family based backlogs.  Family based petitions are so backlogged as to be largely unusable for large swaths of family members of Americans.  The Biden bill would “clear family backlogs, recapturing unused visas, eliminating lengthy wait times and increasing per-country visa caps.”
  • Employment based backlogs.  The administration write that its bill “clears the employment-based visa backlogs, recaptures unused visas, reduces lengthy wait times, and eliminates per-country visa caps.”  The bill would provide enhanced opportunity for STEM graduates to obtain visas as well as expand opportunity for low wage workers.
  • H-1B dependents.  The bill would allow for employment authorization for H-4 dependents and provide protection against H-4 children from “aging out” of residence eligibility.
  • Diversity visa numbers would be increased from 55,000 to 80,000.
  • U Visas.  U visas are available to victims of crime who cooperate with the police.  There is now a 5+ year wait for visas due to the 10,000 cap.  The bill would triple that cap to 30,000 per year.  In addition, it would expand U visa eligibility to include victims of serious labor violations.
  • Civil rights.  The bill seeks to expand the capacity of government watchdog agencies to monitor DHS immigration agencies, specifically ICE and CBP, for abuse and use of force.

There is some vague language about “fairness and balance” in the immigration courts “by providing judges and adjudicators with discretion to review cases and grant relief to deserving individuals.”  What that means remains to be seen.

This is a great start.  Much more needs to be done, especially in the realm of detention and deportation and in realizing independence and due process in the immigration courts.  But, for day 1, we look forward to the rest of the plan.

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