United States: Immigration Under Biden Administration: Recent Executive Orders And Other Updates

Highlights

• The Trump Administration implemented many changes to immigration processes and procedures in the United States that were restrictive and resulted in long delays and suspensions of movement.
• Holland & Knight's third Biden Administration employer alert focuses on additional immigration changes made to various aspects of immigration, including recent executive orders and other updates.
• As the Biden Administration makes more changes during its first 100 days of office, Holland & Knight will continue to provide updates as necessary.

There were many changes to immigration processes and procedures in the United States in just the past year, partially as a result of the coronavirus pandemic and partially as a result of the Trump Administration, which was more restrictive and less supportive of immigration matters. Under the new Biden Administration, which took office on Jan. 20, 2021, Holland & Knight has seen the unraveling of some of the more restrictive measures taken by the previous administration with more dismantling expected. (See Holland & Knight's previous alert, "Immigration Under Biden Administration: Changes in the First 100 Days," Jan. 26, 2021.) This Holland & Knight alert details additional changes to various immigration topics. Holland & Knight will continue to advise clients as more changes are implemented.

Executive Order to Restore Faith in Our Immigration System and Promote Integration of New Americans

On Feb. 2, 2021, the White House issued Executive Order 14012, requiring agencies to conduct a top-to-bottom review of recent regulations, policies and guidance that created barriers to our legal immigration system and ordered immediate review of agency actions on public charge inadmissibility.

USCIS Reverts to the 2008 Version of the Naturalization Civics Test

All applicants filing for U.S. naturalization must pass a U.S. civics test as part of the interview procedure to demonstrate the applicant's knowledge and understanding of the fundamentals of the history, principles and form of government of the United States. Under the Trump Administration and on Dec. 1, 2020, the U.S. Citizenship and Immigration Services (USCIS) implemented a revised naturalization test, referred to as the "2020 civics test," which was more stringent than the previous "2008 civics test" version. Under the current administration and as part of the executive order to Restore Faith in our Immigration System and Promote Integration of New Americans, it has been determined that the USCIS will revert back to the 2008 civics test beginning March 1, 2021.

Applicants who filed their application for naturalization on or after Dec. 1, 2020, but before March 1, 2021, likely have been studying for the 2020 civics test and, as such, the USCIS will give these applicants the option to take either the 2020 civics test or the 2008 civics test. There will be a transition period during which time both tests will be offered to naturalization applicants. The 2020 civics test will be phased out on April 19, 2021 for initial test takers and applicants filing on or after March 1, 2021, will be given the 2008 civics test.

The test items and study guides can be found on the USCIS' Citizenship Resource Center.

Upcoming H-1B Registration

On Feb. 5, 2021, the USCIS announced that the initial registration period for the upcoming 2022 fiscal year (FY) H-1B cap will open at 12:00 p.m. ET on March 9, 2021, and run through 12:00 p.m. ET on March 25, 2021. (See Holland & Knight's previous alert, "Immigration Under Biden Administration: H-1B Visa Cap Registration Period," Feb. 8, 2021.)

More specifically, the registration process will proceed as follows:

• March 9: H-1B registration process opens at 12:00 p.m. ET
• March 25: H-1B registration process closes at 12:00 p.m. ET
• March 31: Date by which USCIS intends to notify selected registrants
• April 1: Earliest date that FY 2022 H-1B cap subject petitions may be filed

On Jan. 8, 2021, under former President Donald Trump, the U.S. Department of Homeland Security (DHS) published a final rule to replace the then-current random selection process pursuant to which USCIS selects H-1B registrations for filing of initial H-1B cap-subject petitions. The new system would have selected registrations based on the highest Occupational Employment Statistics (OES) prevailing wage level that the offered wage equals or exceeds for the relevant Standard Occupational Classification (SOC) code and area(s) of intended employment. The rule was scheduled to take effect on March 9, 2021.

On Feb. 4, 2021, the DHS posted for public inspection a final rule delaying the effective date of the wage based selection system for initial H-1B cap-subject petitions until Dec. 31, 2021. Accordingly, the random selection process utilized by USCIS for the FY 2021 cap season will remain in effect for the FY cap season.

For more information, please review Holland & Knight's second Biden Administration employer alert focusing on immigration details for procedures for the upcoming H-1B Visa Cap Registration Period. For general information about the H-1B registration progress, you can review the USCIS website.

Interagency Task Force on the Reunification of Families

On Feb. 2, 2021, the White House issued executive order 14011, establishing a task force to reunite families that remain separated and revoked the Trump administration's executive order that sought to justify separating children from their parents.

Executive Order on the Southern Border and Asylum System

On Feb. 2, 2021, the White House issued executive order 14010, implementing a comprehensive three-part plan for the safe, lawful and orderly migration across the southern border, to review the Migrant Protection Protocols (MPP) program and directed a series of actions to restore the U.S. asylum system.

Immigration Enforcement and COVID-19 Vaccine Distribution Centers

On Feb. 1, 2021, DHS announced that U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) will not conduct enforcement operations at or near COVID-19 vaccine distribution centers and stressed that DHS is committed to ensuring that all who need a vaccine can get one when eligible regardless of immigration status.

ICE Enforcement Priorities

President Biden's executive order on the Revision of Civil Immigration Enforcement Policies and Priorities and Acting DHS Secretary David Pekoske's Jan. 20, 2021, memorandum titled, "Review of and Interim Revision to Civil Immigration Enforcement and Removal Policies and Priorities," created new interim enforcement policies effective Feb. 1, 2021. The new guidelines focus on the following:

• National Security – individuals who have engaged in or are suspected of engaging in terrorism or espionage, or whose apprehension, arrest and/or custody is otherwise necessary to protect national security
• Border Security – individuals apprehended at the border or ports of entry while attempting to unlawfully enter on or after Nov. 1, 2020, or those who were not physically present in the U.S. before such date
• Public Safety – individuals incarcerated within federal, state and local prisons and jails released on or after Jan. 20, 2021, who have been convicted of an aggravated felony and are determined to pose a threat to public safety

This executive order also requires all DHS, ICE, USCIS and CBP to review immigration enforcement priorities during the initial 100 days of the current administration and issue revised policies no later than April 30, 2021.

The new policies are expected to be in line with enforcement policies prior to the Trump Administration, such that ICE will not target and take into custody individuals with non-aggravated felony convictions and sentences.

Revocation of "Buy American and Hire American" Executive order

On Jan. 25, 2021, President Biden issued executive order 14005 titled, "Ensuring the Future is Made in all of America by All of America's Workers," which among other things revokes President Trump's Buy American and Hire American executive order 13788.

Withdrawal of Proposed H-4 Rescission Rule

On February 2019, the Trump Administration proposed a regulation removing H-4 dependent spouses from the class of foreign nationals eligible for employment authorization. The Biden Administration withdrew this proposed regulation from consideration by the Office of Information and Regulatory Affairs, which is tasked with review of Executive Branch regulations.

Flexibility in Responding to Agency Requests

On Jan. 28, 2021, USCIS announced that because of the continuing COVID pandemic, it extended the flexibilities it previously announced on March 30, 2020, to assist applicants, petitioners and requestors who are responding to the following if the issuance date listed on the request, notice or decision is between March 1, 2020, and March 31, 2021, such that USCIS will consider a response received within 60 calendar days after the response due date set in the request or notice before taking any action:

• Requests for Evidence
• Continuations to Request Evidence (N-14)
• Notices of Intent to Deny
• Notices of Intent to Revoke
• Notices of Intent to Rescind
• Notices of Intent to Terminate regional centers
• Motions to Reopen an N-400 Pursuant to 8 CFR 335.5, Receipt of Derogatory Information