Nearly half of the executive orders signed by President Biden on his first day in office reverse the immigration policies of the Trump administration. The Biden administration's actions included reversing the ban on visa issuance and travel from Muslim-majority countries, placing an immediate pause on funding construction of a wall along the country's southern border, and requiring testing negative for COVID-19 to enter the United States. The new administration's swift action underscores the priority placed on immigration policy, as forecasted here. We outline each executive order signed, with plans to further address the executive actions most critical to employers and businesses.
A. Regulatory Freeze Pending Review Is the First Executive Action.
President Biden's first executive action imposed a regulatory freeze on certain agency rules and regulations. As outlined in a memorandum by Ron Klain, the president's chief of staff, the White House directed the current heads of federal agencies to:
- Place all pending administrative agency rules and regulations on hold until they can be reviewed by a Biden-appointed agency head.
- Withdraw rules that were sent to the Office of the Federal Register but have not been published.
- Consider extending the effective dates for rules that were published after the election but that have not yet taken effect, for a period of 60 days from the date of the memorandum (January 20, 2020), with possible further extensions to follow. The White House also suggested opening up a 30-day notice and comment period for interested parties to provide comments on recently published rules "where appropriate" and for the new administration to consider pending petitions for reconsideration involving the relevant rules.
- Following the 60-day freeze, for those rules that raise substantial questions of fact, law, or policy, consult with the director of the Office of Management and Budget (OMB) and take further appropriate action in consultation with the OMB Director.
The moratorium on federal regulations will impact the implementation of several " midnight rules" that were issued under the Trump administration and that would directly affect employers seeking to sponsor foreign nationals for employment in the United States.
B. Trump Immigration Policies Are Unraveled by Executive Action Number Two.
Consistent with campaign and transition team promises, President Biden signed several executive orders to reverse the prior administration's immigration policies. These executive orders included the following priorities:
- Continuing COVID-19 Travel Restrictions. Beginning January 26, 2021, travelers over the age of two seeking entry into the United States must present a negative COVID-19 test result taken within three calendar days of transiting to the United States. The Executive Order will require all airlines or other aircraft operators to confirm negative COVID-19 test results or recovery from each passenger before allowing them to board or else the operators will face criminal penalties. In addition, travelers who seek admission without a negative test result or certificate of recovery are also subject to criminal penalties themselves. Further, President Biden will not yet lift restrictions on travel from Europe, the UK, and Brazil (restrictions the prior administration attempted to remove in its waning days). In short, travelers from those countries will not be permitted to enter the United States unless they transit through a different country for 15 days or are otherwise eligible for a national interest exception.
- Reversing the "Muslim Ban" and Evaluating "Extreme Vetting" Protocols. A highly anticipated executive order reversed the Trump administration's ban on visa issuance and travel to the United States by citizens of predominantly Muslim-majority countries. The executive order instructs the State Department to restart visa processing and to develop a process to remedy harms and delays caused by the ban, especially for individuals who were stuck in the waiver process or who had their visa applications denied because of the ban.The executive order also instructs administrative agencies to strengthen the screening and vetting of visa seekers from previously banned countries, as well as to review the so-called extreme vetting practices of the prior administration.
- Reprioritizing Immigration Enforcement. In addition to ordering an immediate pause on the construction of the border wall, President Biden's executive action revokes the prior administration's policies for extreme immigration enforcement and orders administrative agencies to replace them with civil enforcement mechanisms. Additional executive action also includes extending the deadline for Deferred Enforced Departure for Liberian refugees.
- Reversing the Trump Administration's Census Policy. President Biden has issued an order reversing the Trump administration's policy that undocumented immigrants should not be counted in the 2020 Census: apportionment shall be based on "the total number of persons residing in the several states, without regard for immigration status." The new order also rescinds the Trump administration policy of using pre-existing government records to attempt to determine the immigration status of individuals in the census count. Instead, the order instructs the secretary of commerce to ensure that the total population count is accurate and complies with all applicable laws.
- Preserving and Fortifying Deferred Action for Childhood Arrivals (DACA). In support of its comprehensive immigration reform bill, "The U.S. Citizenship Act of 2021," which we discuss in our Legal Update, the White House has also issued an executive order directing the secretary of homeland security and the attorney general to take all actions deemed appropriate to "preserve and fortify DACA."
As federal agencies act on President Biden's executive orders in the coming weeks, Mayer Brown will monitor and prioritize our guidance in future advisories.
Visit us at mayerbrown.com
Mayer Brown is a global legal services provider comprising legal practices that are separate entities (the "Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP and Mayer Brown Europe – Brussels LLP, both limited liability partnerships established in Illinois USA; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales (authorized and regulated by the Solicitors Regulation Authority and registered in England and Wales number OC 303359); Mayer Brown, a SELAS established in France; Mayer Brown JSM, a Hong Kong partnership and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.
© Copyright 2020. The Mayer Brown Practices. All rights reserved.
This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.