Feb 2021 Immigration Updates

Now that Joe Biden has been inaugurated as the 46th President of the United States, it’s important to discuss what changes will happen to immigration. Specifically, this article talks about amnesty plan, status changes for Cubans and Venezuelans, as well price increases for the US Citizenship and Immigration Services (USCIS).

Amnesty Under Biden

President Biden said before he came into office that he would try to put together a plan to give 11 million undocumented people a legal status. So many were complaining that he was opening the borders and the US would be overrun with people taking advantage of government hand-outs and taking jobs from Americans. 

But that isn’t what is happening and it won’t happen. As we’ve mentioned before, the 11 million people he’s referring to are people who are already living in the US, most of which work and pay taxes. This includes DREAMers who were brought here as children and others.

Amnesty Under Previous Administrations

For decades, Congress has been trying to pass a bill that gives these same people legal status. President Obama attempted to do the same with DACA, but that only stopped deportation and it did not give legal status. He also tried to help parents of DREAMers, but that was ended by a court in Texas. President Trump also said he would provide a path to citizenship but, as with many of his campaign promises, we never saw that happen.

Biden’s Amnesty Plan

What Biden’s plan proposes is to allow people who are here in the US without legal status to apply for temporary legal status.

To qualify, they must have been physically present in the US on January 1, 2021, which means that there cannot be a sudden rush from the borders. In addition, applicants must have lived here for three years. If someone was deported on or after January 20, 2017 (which was when many of Trump’s policies started to gravely impact immigrants), DHS may waive the presence requirement for family reunification or humanitarian reasons.

After five years, if they are paying their taxes and pass a background check, they can apply for a green card. Three years after that, all green card holders are eligible to become citizens upon passing additional background checks. Certain categories of people including DREAMers, TPS (temporary protected status), and farm workers can apply for green cards immediately.

If you’re applying for an immigration benefit, contact our experienced New Jersey immigration attorney to find out if you meet the eligibility requirements.

Possible Issues with the Amnesty Plan

Will the amnesty plan be approved and passed in Congress? We believe there’s no reason that it shouldn’t. It’s not a broad “let everyone in.” The amnesty plan requires certain things like a background check, and it’s meant for people who are here, most of whom are already positively contributing to society.

One of the biggest issues we can see is that it will take a massive amount of government workers to process these applications and background checks for so many people. And with COVID-19, everyone who has applied has already experienced the even bigger than usual slowdowns in processing times. However, with so many Americans out of work – employing them to get the applications processed would be a win-win all around.

Amnesty Plan Reception

Most Republicans (including those in states with many immigrants like those in Florida) have already said they will vote against this plan. According to political scholars, this is likely because many of them who are thinking of running for President believe that continuing Trump’s anti-immigration stance will help them get more support, money, and votes.

As immigrants and US citizens ourselves, what we hope is that all our elected officials put the country above politics and make decisions based on what is best for the US, not their own selfish self-interests.

Other Immigration Proposals

There are other very welcome proposals that President Biden has made, such as:

  • Clear immigration backlogs.
  • Recapture unused visas.
  • Eliminates lengthy wait times.
  • Increases per country visa caps.
  • Eliminate the three-year and ten-year bans.
  • Eliminate discrimination against LGBTQ+ families.
  • Allow individuals with approved family-sponsorship petitions to join their families in the US on a temporary basis while awaiting their green card.
  • Eliminate bans due to religion.
  • Increase diversity lottery visas from 55,000 to 80,000.
  • Eliminates the one-year wait to apply for asylum.
  • Increase U visas from 10,000 to 30,000 and increases protections for VAWA, T Visa and U Visa applicants.
  • Increased discretion for immigration judges.

While not everything may be feasible or adopted by Congress, we believe these are all important to explore and many should be implemented as soon as possible.

Green cards for Cubans

In the excitement of the inauguration and Trump leaving office, a court decision in Miami that could have big consequences seemed to be ignored by many. A Miami judge said that any immigrant released from DHS custody without an order of parole has been paroled as a matter of law. While it will impact Cubans mostly, it’s possible it will apply to other immigrants as well.

What does this mean?

In January 2017, the wet foot/dry foot policy that allowed Cubans who reached US soil to stay and become legal residents was cancelled. Before that time if they reached US soil they were given an I-94 which is known as a “parole card.” That allowed them to apply for a green card.

When the policy was cancelled, so was the chance for Cubans to get an I-94 and apply for a legal status. This decision is limited to the cases under it, so it does not expand out to everyone who falls into this category.

However, the Judge (Timothy Cole) certified the decision to go to BIA (Board of Immigration Appeals) and if they agree with Judge Cole, it will apply nationwide. 

Cole’s decision said that even though immigrants were not given an I-94 they were “paroled” by being released from custody and it is the law, not the paperwork, that controls. It is also possible that the attorney general of the US could certify this decision, meaning it would apply nationwide, outside of BIA.

 It’s important to follow this as it moves forward, as it could have a far-reaching impact for many.

 Deportation of Venezuelans

Let’s talk about another policy President Trump put in place regarding immigration as he was heading out the door. The night before he was leaving office, he signed an executive order suspending the deportation of Venezuelans from the US for 18 months.

Why them you may be wondering? The current leader of Venezuela is violent and not considered to be in office legally. He keeps his seat by violence. The US has been trying to change that, and have the person who should be in power be put in place.

What Trump provided was called Deferred Enforced Departure (DED) because many Venezuelans who are afraid to return their country have been living here without a status, or the right to work legally. 

What’s good about it is that it gives work authorization, and allows those Venezuelans who aren’t subject to extradition or inadmissible to stay in the US for 18 months.

What’s bad about it is that many advocates say it’s too little too late. Venezuela has been run by corruption and violence for years. In addition, the status is only temporary. Unless President Biden changes that, it will expire in 18 months and everyone who has it now will revert to the same, unprotected illegal status they had before it was put in place.

Most Venezuela advocates would like President Biden to grant TPS (temporary protected status) instead, as that gives a legal status that could lead to a green card. We’ll keep you posted if anything changes on this policy.

USCIS Fee Increases

The last four years have been a roller-coaster for many in the immigration community. In 2017, we saw an expected fee increase. Then another was proposed which was much higher and more extensive.

Since this was so close on the heels of the other increase, immigration groups fought against it and won. However, true to form, the Trump administration and DHS continued to fight, too.

Lawsuits were filed and the fee increases, that were set to go into effect in October 2020, were stopped. DHS quietly dropped the appeal of this decision at the end of December, and we all thought we were free and clear.

But we were not. The main reasons that many of the policies that USCIS tried to put into place were stopped was because Judges throughout the country found that Chad Wolf, the former acting secretary of DHS, was not in his position legally. Therefore, any policies he put in place were invalid.

On January 11th, 2021, Mr. Wolf resigned. However, he did not leave DHS. He was given a position by the person who replaced him. And that person then passed a memorandum stating that Mr. Wolf had full authority to enact any policies for DHS. And then Mr. Wolf started doing that. He wrote a long memo including all the changes he had tried to make to DHS policies such as the fee increases, and public charge, ending DACA, and a variety of others, and said they were now in full effect.

What It Means For Immigration

If you go to the USCIS website, they haven’t updated anything. The fees are the same. DACA applications and Advance Parole are still being accepted as of the latest court decision.

Typically, judges do not like such underhanded tactics. But if it falls within the APA (administrative procedures act) they may allow it.

Will President Biden, or the new head of DHS (whose confirmation is being slowed down by Republicans), need to do something definitive to reverse this most recent memo? Probably.

Will USCIS try to implement the changes Mr. Wolf, and President Trump, want? That is unknown. As we find out more, we will be sure to let you know.

If you have immigration questions or concerns, call us at Andres Mejer Law or fill out the contact form to get in touch with our experienced immigration attorney in New Jersey.