The Biden Immigration Bill: A Summary and Reflections

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The Biden Immigration Bill is not the law yet, but here are some highlights from the 66-page summary.

Lawful Prospective Immigrant (LPI) Status

The bill will create a new “lawful prospective immigrant” status, or LPI. This status will remain in effect for six years, and immigrants can file for a green card after five years. To be eligible for LPI status, immigrants must have been in the U.S. since Jan. 1, 2021. Immigrants who were in the U.S. for three years and departed or who were deported during the Trump presidency can still qualify for LPI status. Immigrants can use the receipt notice of LPI status as a work permit.

LPI status cannot be used by ICE. Many crimes can disqualify immigrants from obtaining LPI status. Those who had certain statuses on Jan. 1, 2021, will be ineligible. 

LPI’s Impact on Immigrant Noncitizens 

Dreamers, who are those who entered the U.S. under the age of 18 and before Jan. 1, 2021, can skip LPI status and go straight to getting a green card. This is a dramatically better situation than DACA was. Current DACA recipients will enjoy an easier, streamlined green card process, and Dreamers’ spouses and children will be included.

Holders of TPS and DED (Temporary Protected Status and Deferred Enforced Departure) can also skip LPI status and get a green card as long they meet LPI criteria and have been in the U.S. since Jan. 1, 2017. Agricultural workers who meet LPI requirements and have completed 2,300 work hours (400 work days) of agricultural labor can also skip LPI and apply for their green card. 

V Visas will return, and they are better than ever. These visas allow people stuck in long visa wait times to be with their family in the U.S. while they wait their turn. The visa has been expanded to all family-based immigration and authorizes immigrants to work while in the country.

Changes to Immigration Law 

New approaches to crimmigration would be a game changer as, most notably, convictions would be redefined. For immigration purposes, convictions that have been dismissed, vacated, deferred, and expunged will no longer be considered convictions. Biden’s bill will also bring back several policies that prevent the government from removing noncitizens:

  • JRAD (Judicial Recommendation Against Removal), which was repealed in 1990, allows courts sentencing criminal defendants who were not citizens to bar the executive branch from deporting that person.
  • New humanitarian waivers of criminal conduct — including 212(c), which was repealed in 1996 — will allow for greater judicial review of DHS decisions and creates new judicial procedures for LPI status challenges. 

More immigrant noncitizens will become eligible for a three-year naturalization process (down from five years) with English requirements waived for senior citizens. Further, graduates of U.S. high schools will no longer have to take civics tests to naturalize. Enhanced protections for orphans and surviving spouses will also be included.

Significantly, terminology will be updated to reflect a new attitude. All references to the word “alien” in immigration law will be eliminated and replaced with the term “noncitizen.” Civil marriages no longer are required for partner-based immigration. Instead of “spouse,” immigration law will recognize “permanent partner” status. 

Backlogs and Bars

Backlogs will be cleared by capturing all unused visas from 1992–2020 without deducting immediate relatives. Spouses and children of green card holders will be treated as immediate relatives. And there will be changes to the way immigrant numbers are counted.

Many of those caught in the current system’s backlog will get relief, including employed people who have waited for 10 or more years. Immigrants also will be able to retain old priority dates. Per-country caps will be eliminated but overall levels will be increased to avoid the worldwide quota being used up by India and China.

One huge reform is the repeal of three- and ten-year reentry bars on immigrants who were in the country unlawfully for an extended period of time and then departed, as well as permanent bars. This one change will provide relief to millions of people who will now be able to leave the U.S. and return on a regular visa without penalty.

The bill will also permit no discrimination on grounds of religion and will place limits on the president’s power to issue travel bans.

Visa and Lottery Programs

The new economic development immigrant visa pilot program will allow the issuance of 10,000 new visas per year for employment essential to economic development strategies. The visa will be good for five years. The Diversity Lottery will be increased from 55,000 to 80,000. The level of employment-based immigration will be raised from 140,000 to 170,000 with an increase in per-country caps from 7% to 20%. 

The U visa, which is set aside for certain crime victims (like sexual assault and trafficking victims) who help law enforcement, will have its cap raised from 10,000 to 30,000. Victims of labor violations will now qualify for this visa. New special immigrant visas also will be available for overseas government employees and for some Syrians who worked in the U.S. government there.

Immigration Court Reform

Reform of immigration courts will include expanding alternatives to detention, hiring 55 new immigration judges each year through 2024, enhancing technical support staff, instituting e-filing, and authorizing court-appointed attorneys in removal proceedings and making them mandatory for children and vulnerable people. Additionally, the U.S. government will have to provide the entire file to respondents and cannot deport anyone without doing so. An immigrant’s right to counsel will be affirmed at all proceedings, including expedited removal, bond, and detention hearings. The bill also will expand legal orientation programs for all respondents. 

The bill repeals the one-year bar for asylum, which would allow immigrants to file an asylum claim after more than one year. Asylum applicants will no longer have to wait 180 days to apply for a work permit.

Protection and Integration Reforms

The bill will offer enhanced workplace raid protections for arrested workers as well as enhancement for employment verification. New efforts will be made to promote integration and workforce development. These include campaigns to urge naturalization, the creation of new immigrant councils, as well as the promotion of English language skills and vocational training.

The bill calls for continuing education and training for ICE (Immigration and Customs Enforcement) and CBP (Customs and Border Protection) officers, which will include a focus on cultural knowledge and understanding some legal and medical procedures. New “use of force” guidelines will be produced in coordination with the Department of Justice Civil Rights Division. The bill also establishes minimum standards of care for detainees, including children, and enhances penalties for trafficking and smuggling. 

Managing the Southern Border

The bill initiates a four-year strategic engagement with Central America. Efforts will be undertaken to “address the root causes of migration” and expand refugee resettlement in the Western Hemisphere, including setting up resettlement centers in the Northern Triangle (El Salvador, Guatemala, Honduras). The bill will also revive the CAM (Central American Minors) program so immigrants from the Northern Triangle can be considered for refugee resettlement before they leave home, which will be under OIG (Office of Inspector General OIG) oversight.

There’s a lot in this “summary of a summary.” You can find the bill text here.

Biden’s immigration bill is a good start. Without getting into a “perfect vs. good” war, I do have some initial thoughts and warnings: 

  1. Family detention needs to end. There’s no way to humanely detain children.
  2. The bill needs stronger healthcare worker provisions.
  3. The “information campaigns” telling people not to come are a waste of time and reek of imperialistic bravado. Let the laws do the talking. 
  4. The definition of “refugee” has been gutted by years of muddled jurisprudence. It’s time to redefine “refugee” as those people who are forcibly displaced. It also should include climate refugees.
  5. We must explicitly recognize the purging of racism from our immigration laws. This must be made as a stated, express policy. 
  6. It is good that the Biden bill uses the term “manage” the border but still uses the term “secure.” A properly managed border is secure. And prosperous. Stop reinforcing the symbol of the border as a wall. It’s a tool, hopefully, to be used wisely. 
  7. This bill would be the largest amnesty in history. The anti-immigrant movement will not let this slide. This bill is a reversal of 40 years of their hateful “advocacy.” Ignore white nationalist John Tanton’s network of anti-immigrant organizations, many of which are designated as hate groups by the Southern Poverty Law Center, at your own peril. If this bill fails, it’ll be because of them.

This article was edited from a tweet thread. You can read the original thread here.

Photo by Michael Förtsch on Unsplash

DemCast is an advocacy-based 501(c)4 nonprofit. We have made the decision to build a media site free of outside influence. There are no ads. We do not get paid for clicks. If you appreciate our content, please consider a small monthly donation.

Hassan Ahmad serves on the DemCast Board of Directors. An immigration lawyer and advocate fluent or proficient in 8 languages, he founded his practice on his belief in the right to seek prosperity. A former candidate for the Virginia House of Delegates, he serves on the Commonwealth Commission for Diversity, Equity, and Inclusion, and the Virginia Asian Advisory Board. He has fought for asylum seekers, families, and businesses seeking prosperity for 16 years, and seeks to elevate stories of the aspiring American experience to policymakers at all levels. Hassan lives in northern Virginia with his wife & three children. ​

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Para una versión en inglés de este artículo, lea "A Recurring Nightmare."

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