Still Striving - The First Year of the Biden Administration

AILA publishes a comprehensive assessment of President Biden’s accomplishments one year after entering office based on A Vision for America as a Welcoming Nation, the recommendations AILA presented to the president upon his election in November 2020. Each of the 12 charts encompassed in AILA’s report on Biden’s first year covers a major area of reform. Collectively they provide a detailed evaluation of the Biden’s administration’s accomplishments and shortcomings. A Vision for America as a Welcoming Nation was developed in consultation with AILA’s national policy committees and its network of pro bono volunteer lawyers who represent people in U.S. detention centers.*

*AILA could not have produced this report without the extraordinary research and writing of two consultants, Michael Turansick and Chris Rickerd.

 

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Chart 1: Proclaim a Message of Welcome (Read AILA Recommendations Chapter 1)

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	AILA Recommend­ations	Biden Administr­ation Actions
A message of welcome	Terminate or rescind the Muslim ban.	The Muslim ban has been rescinded.
	Terminate or rescind the refugee ban.	The refugee ban has been rescinded.
	Terminate or rescind the asylum bans. (See Chart 4)	Chart 4 provides details on the interim final and final rules known collectively as the “asylum bans.”)
	Terminate or rescind the pregnancy ban.	No action.
	Terminate or rescind the health insurance ban.	The Health Insurance Proclamation has been rescinded.
	Terminate or rescind the Public Charge Rule.	The Public Charge Rule has been rescinded.
Profession­alism and integrity	Appoint diverse personnel to immigration agencies.	President Biden appointed several officials with diverse backgrounds. A Director of ICE has not yet been confirmed.
	Review hiring practices to remedy improper or politically driven personnel decisions. Overhaul all training protocols at immigration agencies. Freeze hiring until training is implemented.	President Biden requested funding in his FY 22 budget to investigate concerns about white supremacy and ideological beliefs in ICE and CBP but the administration has not otherwise made public any action taken on this recommendation. For example, DHS trained personnel on immigration enforcement priorities but has not made the training materials publicly available.
Stakeholder engagement	Reopen public engagement with AILA and others.	Various government agencies have initiated public stakeholder engagements, met with AILA committees and leadership, and/or attended the AILA conferences, including ICE, EOIR, and USCIS, who had stopped liaison engagement with AILA during the Trump administration.
COVID-19 pretextual bans	Repeal the presidential proclamations banning the lawful entry of foreign nationals to protect the labor market.	President Biden repealed the proclamation banning immigrants and allowed the non­immigrant ban to expire.
	Rescind or terminate the presidential proclamations banning entry of individuals who pose a risk to transmit COVID-19.	President Biden initially extended country-specific COVID-19 bans for UK, Ireland, the Schengen Area, China, Brazil, and India and established new bans for travelers from Southern African countries. These travel restrictions were rescinded and replaced by proof of vaccination and testing requirements. Temporary restrictions on non-essential travel from Canada and Mexico were also extended but were replaced with vaccination requirements as well, including for essential travelers which are expected to take effect in January 2022.
	Rescind the CDC Title 42 order which blocks and expels asylum seekers based on the pretext of COVID-19 protection.	See Chart 4

 

 

Chart 2: Ensure Fairness, Efficiency, and Accountability in the Legal Immigration System (Read AILA Recommendations Chapter 2)

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	AILA Recommend­ations	Biden Administr­ation Actions
Efficiency in adjudic­ations	Reinstate the “deference” policy.	USCIS reinstated the 2004 policy to defer to prior determin­ations of eligibility when adjudicating an extension application and to consider decisions made by other agencies.
	Eliminate mandatory interview requirements.	USCIS rescinded a policy requiring interviews of all petitioners for Refugee/Asylee relative petitions. Although no formal announcement has been made, practitioners report that interviews for I-485 employment-based applications are being waived in many cases.
	Ensure consistency in adjudications.	Although USCIS announced the rescission of the 2018 RFE and NOID Memo and reinstated the deference policy, longstanding issues remain with consistency in adjudications which require better training of adjudicators.
	Stop the “blank space” rejection policy.	USCIS has agreed to stop the blank space rejection policy for certain application types and has permitted refiling of certain rejected I-485 applications.
	Increase transparency on case processing times and backlog.	USCIS has appointed a Senior Executive to review long standing backlog issues, which were exacerbated by the pandemic. USCIS also concurred with most of the GAO recommendations for case backlog reduction. USCIS also released a 5-year plan on its digitization plan in an effort to streamline processing. Similarly, USCIS released a Backlog Reduction of Pending Affirmative Asylum Cases Report. However, USCIS has not yet implemented expanded premium processing pursuant to the USCIS stabilization Act. Case processing delays and backlogs remain at an all-time high.
Adherence to USCIS statutory mission	Forbid transfers of funds and personnel from USCIS to CBP or ICE.	No action, but funds transfers have not occurred.
	Conduct a full review of the fraud unit.	No action.
	Rescind the July 2018 Notice to Appear (NTA) guidance.	The NTA guidance was rescinded.
	Restore opportunities for people to integrate and naturalize.	USCIS announced that it will revert to administering the 2008 civics test for certain applicants. President Biden’s budget requests resources to reduce naturalization backlogs. The administration established an Interagency Naturalization Working Group (NWG), comprised of 11 federal agencies. The NWG developed an Interagency Strategy for Promoting Naturalization plan and has taken steps in key areas for promoting naturalization and removing barriers for noncitizens. In FY 2021, USCIS welcomed 855,000 new citizens.
	Strengthen naturalization, parole, and other programs to assist members of the armed forces, veterans, and their families.	USCIS conducted remote video interviews and naturalization ceremonies for overseas processing of military members and their family members. USCIS issued clarifying guidance on the eligibility of military services members to naturalize and for those veterans residing overseas. The administration is implementing a policy that would narrowly restrict access to humanitarian parole by Afghan nationals, many of whom provided material support to U.S. armed forces.
Customer Service and Public Engagement	Reopen liaison channels and improve the InfoMod program.	USCIS has been more responsive to liaison inquiries and providing case resolution. Moreover, USCIS has begun to hold liaison meetings with AILA at a local and national level. The CIS Ombudsman held stakeholder engagements to solicit feedback on the USCIS Customer Service tools and the Contact Center; however, significant problems continue to persist with the InfoMod program.
	Restructure and empower the Customer Service Division.	No action.
Accessibility to the Immigration System	Halt the USCIS fee rule, reinstate fee waivers, and maintain reasonable fees.	USCIS has agreed not to implement the regulatory changes set out in the final rule, keeping fee waivers and no fees for asylum applications in place. USCIS issued a notice seeking public input on how USCIS can make the immigration system more accessible.
	Rescind the Public Charge Rule.	The Public Charge Rule has been rescinded.

 

Chart 3: Restore Integrity, Fairness, and Efficiency to the Immigration Courts (Read AILA Recommendations Chapter 3)

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	AILA Recommend­ations	Biden Administr­ation Actions
Independent immigration court system	Urge Congress to create an Article I immigration court system independent from DOJ.	No action.
Judicial independ­ence and fairness	Implement new policies to restore judicial independence, fairness, and consistency to the immigration courts.	EOIR rescinded and replaced some of the preceding administration’s damaging policy memoranda and policies. On the other hand, EOIR created a “Dedicated Docket” to speed up adjudication of family cases from the border.
	Install new leadership in key posts.	David Neal was named Director of EOIR. Andrea Saenz was appointed to the Board of Immigration Appeals.
	Address the Trump adminis­tration’s politicized hiring of immigration court judges and BIA members.	The president’s proposal called for funding to hire 100 more immigration judges plus staff, which was included in Congressional budget bills (which have not passed as of 1/19/22). More effort is needed to increase the diversity of immigration judge and BIA appointments.
	Rescind Attorney General opinions, and policies that stripped immigration judges of authority to manage dockets and ensure due process (Matter of Castro-Tum, Matter of L-A-B-R-, and Matter of S-O-G-& F-D-B-).	The Attorney General in Matter of Cruz-Valdez overruled Castro-Tum, and EOIR has issued new implementing guidance on administrative closure. DOJ has not rescinded previous Attorney General opinions restricting continuances and terminations.
Due process	Rescind immigration judge case completion quotas.	EOIR ended the case completion quotas but has not announced what new performance measures will be implemented instead.
	Rescind problematic performance metrics and deadlines on the BIA and immigration court.	Many problematic policies remain in place. EOIR issued a new memo on case processing, rescinded a memo related to BIA filing deadlines, and improved filing deadlines in non-detained cases.
	Rescind the EOIR rule imposing new deadlines on asylum applications.	No action, though the rule is currently enjoined.
	Rescind the “no dark courtroom policy.”	No action.
Notice procedures	Provide notice of hearings in compliance with the Supreme Court’s decision Pereira v. Sessions. Review all in absentia removal orders to correct for government error.	Inaction allowed the BIA to issue a decision, Matter of Arambula-Bravo, that has worsened the law on notice of hearings.
EOIR fee rule	Stop EOIR proposed rulemaking that would increase application fees.	Following a federal court injunction halting most of EOIR’s fee rule, in June 2021, EOIR issued a Policy Memo rescinding a 2020 memo that was based on the enjoined rule. Two fee increases were not enjoined by the court, including one for motions to reopen or reconsider.
Immigration Adjudication Centers	Stop the use of “black box” IACs, which severely undermine due process.	No action.

Chart 4: Ensure the Fair and Humane Treatment of Migrants at the Border (Read AILA Recommendations Chapter 4)

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	AILA Recommend­ations	Biden Administr­ation Actions
Protection for asylum seekers	Rescind the CDC Title 42 order that blocks and expels asylum seekers under the pretext of COVID-19 protection.	The Biden administration has not rescinded the Title 42 order and justifies its continued application due to the COVID pandemic, in defiance of many public health experts. The administration did not resume expulsions of unaccompanied children. It is however fighting a district court ruling that would have prevented expulsion of families with children.
	Rescind the November 2018 asylum ban.	President Biden rescinded the proclamation leading to the asylum ban and the interim final rule is currently enjoined. The Biden administration announced the rule which would bar asylum for anyone who enters the U.S. outside of ports of entry is under review.
	Rescind the July 2019 third country asylum ban.	The 2019 ban is currently subject to a preliminary injunction pending a final decision on the merits of the litigation. The administration has announced the rule is under review to modify or rescind.
	Rescind the Migrant Protection Protocols (MPP).	The administration formally rescinded MPP in June 2021. A district court order has enjoined the administration from ending the program and required it to implement MPP in “good faith.” Litigation on the injunction is before the Supreme Court. The administration issued a second termination memo but unnecessarily terminated the wind-down of MPP 1.0. MPP 2.0 restarted with changes that include nominally improved protections/vulnerability categories and expanded eligibility for all Western Hemisphere countries. The policy continues to return people to harm in Mexico.
	Rescind the Asylum Cooperative Agreements with Guatemala, Honduras, and El Salvador.	The Asylum Cooperative Agreements have been terminated. But the administration’s continued use of the Title 42 order subjects nationals from Guatemala, Honduras, and El Salvador to expulsion by air to their home countries.
	Rescind the Prompt Asylum Claim Review (PACR) and Humanitarian Asylum Review Process (HARP) programs.	The President rescinded these programs and instructed DHS to cease implementation. DHS, however, is subjecting individuals and families to expulsion or expedited removal.
Reception of migrants at the border	Establish an Office of Migrant Protection and scale-up of screening and protection capacity at high-volume ports of entry.	The administration did not create an office to protect migrants and took minimal steps to improve protection and screening at ports of entry. The administration scaled up capacity to address numbers of unaccompanied children seeking protection. ICE signed an agreement for emergency migrant shelter services with Endeavors to hold people in hotels.
	Authorize asylum officers to grant asylum as part of the credible fear process	The administration published a notice of proposed rulemaking to make significant changes to asylum processing at the border. AILA supports authorizing asylum officers to grant protection but submitted comments opposing the proposed rule’s streamlined hearings and other provisions which would erode due process.
Fair and humane border enforcement	Eliminate the Consequence Delivery System (CDS).	The administration is seeking public comments on how to prevent family separation. Family separation is a hallmark of CDS, which punishes migrants to deter future migration. Other unnecessary and harmful consequence measures continue to be deployed by this administration, including reinstatement of removal and criminal prosecution for entry or re-entry. The administration should take aggressive action to halt Texas’s Operation Lone Star prosecutions of migrants for trespassing.
	Suspend prosecutions for illegal entry and reentry.	The administration rescinded the Zero Tolerance policy but has not otherwise addressed prosecutions for illegal entry or reentry. The administration appealed a federal court ruling that the crime of re-entry was enacted with racist and nativist animus, has a disparate impact on individuals of Hispanic or Latinx origin, and is enforced with discriminatory intent.
	Halt the practice of metering and practices restricting the number of asylum seekers at the border.	The administration revoked the memorandum on metering and affirmed the right of foreign nationals seeking asylum to remain in line for border processing. However, the replacement memorandum creates unclear exceptions and has retained the Title 42 exclusion policy. A federal judge has declared the practice of metering unlawful and is now considering remedies.
	Halt the use of the fast-track expedited removal and reinstatement of removal procedures.	The administration suspended use of expanded expedited removal (beyond the 100-mile border zone and within two weeks of arrival) pending a review. Other expedited removal and reinstatement of removal procedures remain in place.
	Restore the practice of releasing recent border arrivals while immigration court proceedings are pending.	While some individuals are released on their own recognizance, record numbers of migrants are being surveilled by ICE’s alternative to detention programs. The administration has deemed recent border crossers (entering after Nov. 1, 2020) a priority for enforcement and is reportedly planning “reception centers” at the border to preclude releases.
Border wall and barrier construction	Rescind the Executive Order and halt all plans for a wall along the southern border.	President Biden issued a proclamation limiting the use of emergency funding for border wall construction. DHS has announced remediation efforts for walls built using its and DOD’s funds. The administration’s FY 2022 budget proposal contains no funding for border wall construction, but there has been significant ongoing building termed “levee construction” that has similar effects.

Chart 5: Restore Asylum Law and Protection for Victims of Crime and Refugees (Read AILA Recommendations Chapter 5)

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	AILA Recommend­ations	Biden Administr­ation Actions
Restoration of asylum law and procedures	DOJ and DHS should reverse Trump-era policies that exclude victims of domestic violence, gang persecution, and other categories of people from protection.	The Attorney General vacated Matter of L-E-A- and Matter of A-B-, and DOJ and DHS will issue a report and joint regulations on the meaning of “particular social group” for asylum purposes.
	Halt policies that establish extreme restrictions on asylum including the “death to asylum” regulation or the regulation justified on security bars.	The “death to asylum” rule is currently enjoined and DHS and DOJ are proposing to modify or rescind it. The rule justified on security bars is currently delayed but the administration re-opened the comment period.
	Address the ever-growing asylum backlog of cases before the USCIS Asylum Offices.	The president’s FY22 budget proposal included discretionary funding to address the backlog. AILA has urged USCIS to provide an expenditure plan to Congress for funds allocated as part of the September 2021 funding bill. USCIS submitted an annual report to Congress on “Backlog Reduction of Pending Affirmative Asylum Cases” and DHS produced a 5-year plan on digitizing benefits applications.
Barriers for crime victims	Revoke the Vincent Memo; August 2019 ICE fact sheet permitting deportation of U visa applicants before USCIS determines prima facie eligibility. Restore the 2009 policy on U visas.	DHS issued a memorandum providing guidance on removal priorities that focuses removal efforts on those who pose a threat to national security, public safety or border security. While not specifically referencing U visas, the memo does state that being a crime victim or witness is a mitigating factor in exercising discretion. ICE issued a new directive on “Using a Victim-Centered Approach with Noncitizen Crime Victims.”
	Reduce the U visa backlog by hiring additional adjudicators.	The administration’s FY2022 budget requests funding to modernize systems and operations. USCIS is implementing some of the DHS Inspector General’s recommendations which drew upon data gathered primarily before 2021 to conclude that USCIS had not effectively managed the U visa backlog. In June 2021, USCIS implemented a new Bona Fide Determination Process. The administration lost a ruling in the Sixth Circuit, which permitted claims of delayed waitlist determinations to go forward.
	Implement the statutorily authorized plan to issue work authorization to people who have filed U visa applications under INA §214(p)(6).	USCIS issued a Policy Alert providing guidance on the issuance of employment authorization documents (EAD) and deferred action to certain U visa applicants.
	Create a parole program for U visa applicants abroad as required by 8 CFR §214.14(d)(2).	No action.
Refugee protection	Resettle at least 125,000 refugees in FY2021 and increase resettlement from Central and Southern America.	The administration announced in April 2021 that it would limit the refugee admission figure to 15,000 for FY 2021. Under public pressure, it revised the figure in May to 62,500. In FY 2021, the U.S. admitted 11,411 refugees, the fewest since the Refugee Act passed in 1980. The administration raised the refugee admissions cap to 125,000 for FY 2022.
	Restart the Central American Minors (CAM) program to parole children to reunite with parents in the U.S.	The administration reopened the CAM program in March with some expansion of petitioner eligibility.

Chart 6: Guarantee Legal Assistance and Counsel (Read AILA Recommendations Chapter 6)

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	AILA Recommend­ations	Biden Administr­ation Actions
Government funded legal counsel	Commit to providing every person facing removal with legal counsel paid for by the government if they cannot afford it.	The President has not committed to providing legal counsel to all indigent persons in removal proceedings. His immigration bill provided counsel but only to children and other vulnerable populations. The administration expanded government appointed counsel for certain children.
	Reestablish the Office of Access to Justice to facilitate legal counsel and education programs.	The DOJ Office for Access to Justice reopened in November 2021. The Attorney General and the White House reconstituted the Legal Aid Interagency Roundtable.
Access to legal counsel	Ensure detainees have expanded access to legal counsel, interpreters, and other members of their legal team.	Despite administration statements committing to improve access to counsel, detention facilities routinely deny people access to counsel. Particularly egregious was the severe due process violations committed at the Torrance County facility in New Mexico which disproportionately impacted Haitians.
	Expand visitation policies by increasing private meeting space and video and telephone communi­cations.	While the coronavirus pandemic has altered the means by which people receive legal support, there is still a lack of meeting space and limited access to individuals in detention.
Expand Legal )rientation Programs	Expand and improve EOIR’s legal orientation programs (LOP), which the previous administration attempted to defund.	The LOP continues to function though program operations decreased or were inconsistent during the pandemic. Less than one quarter of detention facilities are equipped to provide LOP presentations.

Chart 7: End Inhumane Detention (Read AILA Recommendations Chapter 7)

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	AILA Recommend­ations	Biden Administr­ation Actions
Reducing detention	Reduce the average daily population of detained persons and funding for detention by 75 percent.	During the Biden administration’s first year, detention levels increased to 22,000 (for the first quarter of FY 2022) from a 20-year low at the end of the Trump administration of 14,000 people detained.
	Establish a presumption of release and the use of least restrictive methods for individuals apprehended for immigration purposes.	The administration released final enforcement guidance which covers custody decisions but did not establish a clear policy favoring release or the use least restrictive methods.
	Expand nationwide the use of community-based management and supervision programs as alternatives to detention.	The administration’s preliminary FY 2022 budget request includes funds for alternatives to detention and enhanced case management services but it is unclear how programs will be managed. Most alternative to detention programs continue to be operated by ICE or private contractors and not by non-profit community-based organizations.
	End family detention and the separation of families.	The administration created a task force to reunite families separated under “Zero Tolerance.” The administration has transitioned family detention centers to adult detention centers but has yet to formally announce the end of family detention.
	Review all detention cases to determine whether detention is necessary and justified.	ICE created a Case Review process by which people can request review of their case, but it has not announced plans to reviewed all pending cases of people in detention.
Private prison contracting	Terminate all existing contracts with private prisons and county jails and place a moratorium on future contracts or expansions.	The President issued an executive order requiring the termination of DOJ private prisons contracts with end dates but did not apply it to private immigration detention. Instead, DHS expanded contracts with one private facility that DOJ had terminated to comply with the executive order and is resisting efforts to reduce the use of private facilities.

Chart 8: Set a Vision for Immigration Enforcement that is Fair, Humane, and Effective (Read AILA Recommendations Chapter 8)

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	AILA Recommend­ations	Biden Administr­ation Actions
Pause on deportations	Halt deportations until DHS reviews pending cases and establishes new enforcement priorities.	President Biden attempted to pause removals of certain noncitizens during his first 100 days. A federal court indefinitely halted that plan.
Enforcement priorities	Establish clear enforcement priorities that give weight to the favorable equities in each person’s case.	DHS issued new enforcement priorities which are in effect but are subject to pending litigation. Implementation is stayed as to detained people subject to mandatory detention or with removal orders. Interim guidance to attorneys representing ICE was also issued and remains in effect. The enforcement priorities and guidance emphasized the consideration of “aggravating and mitigating” factors. AILA is monitoring implementation and seeking examples that illustrate trends.
Review of pending cases	Review pending cases to determine whether continued enforcement action is justified.	ICE created a system for individuals to ask for review of decisions denying prosecutorial discretion. AILA has received reports from members of inconsistent implementation of the review process.
Prosecutorial discretion	Implement a robust procedure for the exercise of prosecutorial discretion.	ICE has begun implementation of the administration’s enforcement priorities. It is still too early to evaluate whether the process is effective.
Preventing the spread of COVID-19 in enforcement	Review detention, transfer, and deportation practices to prevent the spread of COVID-19.	ICE issued updated guidance for its jails, but its public reporting on COVID-19 is unreliable. ICE refused to stop transferring individuals during the pandemic, fought against releases, and appealed a court order protecting people with medical issues or who are at-risk of death due to COVID-19. ICE took 10 months to issue guidance on vaccinations and has provided boosters inconsistently.
287(g), detainers, and other collaborations with local police	Halt ICE and CBP collaborations with local police that pressure local law enforcement to violate the law and the Constitution, and compromise public safety.	The Biden administration’s nominee to lead ICE, Sheriff Ed Gonzalez said he would not end 287(g) agreements. DHS ended one agreement with the Bristol County, MA Sheriff’s Office and abrogated last-minute federal-state agreements signed by the prior administration.
Body-worn cameras	Set requirements that are consistent with law enforcement standards that protect the privacy of the public and officers.	ICE announced a pilot program for ICE officers to wear body-worn cameras for pre-planned operations. CBP intended to deploy 6,000 cameras by the end of 2021. Neither agency revealed the policy framework governing cameras.

Chart 9: CBP and Port of Entry Processing (Read AILA Recommendations Chapter 9)

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No administrative action taken or implemented

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	AILA Recommend­ations	Biden Administr­ation Actions
Consistency and transparency in adjudications	Promote uniformity in adjudications at all ports of entry by publishing non-classified Adjudication Guidance Musters on its website.	No action.
	Implement rigorous oversight and “guardrails” to ensure the work of the National Vetting Center and the use of biometrics is consistent with CBP’s mission. Publish all policy changes.	CBP reopened the comment period for the proposed rule revising DHS’s comprehensive biometric entry and exit system for thirty days. DHS withdrew the proposed rule that would have expanded its use of biometrics.
Uniform redress methods	Create a clear and centralized national system where travelers can request I-94 corrections.	No action.
L non­immigrant petition adjudication	Reestablish the practice of adjudicating reentry applications for L status at the northern border.	No action.
Infra­structure Modern­ization	Properly resource CBP to maintain sufficient well-trained staff and provide more lanes at ports and increased hours of operation.	The Infrastructure Investment and Jobs Act provides $430 million to CBP for improvements at land ports of entry and over $3 billion to the GSA for border patrol stations and land ports of entry.

Chart 10: Protect Undocumented People and Others with Deep Ties to America (Read AILA Recommendations Chapter 10)

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	AILA Recommend­ations	Biden Administr­ation Actions
Deferred Action for Childhood Arrivals	Reinstate DACA and make it fairer and more accessible.	President Biden announced his commitment to defend DACA and DHS proposed regulations to restore DACA, which were ruled unlawful in July 2021 by the U.S. District Court for the Southern District of Texas.
Temporary Protected Status and Deferred Enforced Departure	Designate or renew TPS and DED designations for the following countries: El Salvador, Haiti, Honduras, Nepal, Nicaragua, Sudan, Sierra Leone, Guinea, Syria, Yemen, South Sudan, Somalia, Venezuela, the Bahamas, Guatemala, and Lebanon.	President Biden announced or renewed DED for Venezuela Liberia, and certain Hong Kong residents. The Biden administration announced, extended, redesignated or renewed TPS for Burma (Myanmar), Syria, Venezuela, Nepal, Somalia, Honduras, Sudan, South Sudan, Yemen, El Salvador, Haiti and Nicaragua. TPS has not been granted for Afghanistan, the Bahamas, Guatemala, Guinea, Lebanon, or Sierra Leone.
Humanit­arian parole and deferred action	Apply deferred action and humanitarian parole to protect military families, people with severe medical needs, victims of serious crime waiting for U visas, and others.	The administration has not expanded deferred action to apply to any new populations. The Biden administration rescinded the Zero Tolerance policy and ordered a task force to explore granting humanitarian parole or other immigration benefits to those affected by the Zero Tolerance and family separation policies. The administration has taken a restrictive approach to humanitarian parole applications by Afghan nationals.

Chart 11: Employment-Based and Family-Based Immigration (Read AILA Recommendations Chapter 11)

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No administrative action taken or implemented

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	AILA Recommend­ations	Biden Administr­ation Actions
Work author­ization and verification	Ensure faster processing of work authorization. DHS should modernize and simplify the employment verification process.	While the delays for processing employment authorization applications continue to be significant, USCIS has taken the following steps to streamline processing: Extending flexibilities to applicants filing Form 1-765 for certain foreign students affected by delayed receipt notices and permitting F-1 students to apply for work authorization electronically. Issuing a policy manual update allowing automatic employment authorization renewal for H-4, L-2, E-2 spouses. Recognizing that E and L spouses are authorized for employment incident to status and do not need to apply for an EAD. Reusing biometrics for 2.5 million applicants since March 2020 which significantly reduced the number of biometrics appointments. Publishing guidance on Expedite Criteria, including for EADs for health care workers. Extending the validity of EADs for certain Adjustment of Status applicants. DHS has also taken steps to modernize employment verification process, including: Extending flexibility in processing Forms I-9 to waive physical inspection requirements of documents for remote workers, currently through April 30, 2022. Issuing a Request for Public Input on Remote Document Examination for Form I-9. Announcing its intent to publish a Notice for Proposed Rulemaking on Remote Form I-9 Verification in the Summer of 2022.
Relief for individuals in the immigrant visa backlogs	Revise regulations to allow for earlier filing of adjustment of status applications and to protect children from aging out of immigrant visa eligibility.	No administrative action, but the proposed U.S. Citizenship Act and Build Back Better Act would address family and employment-based visa backlogs, per country visa limits and aging out of H-4 children, if enacted.
Visa recapture	Recapture unused visas through administrative means.	No administrative action, but various bills were introduced that would address visa recapture, including the U.S. Citizenship Act, the Build Back Better Act, and the Preserving Employment Visas Act, if enacted.
Immigrant visa numerical limitations	Exempt derivates from numerical limits through administrative means.	No administrative action, but the proposed U.S. Citizenship Act would exempt spouses and children from numerical limits in family, employment and diversity visa categories, if enacted.
Equitable wages for U.S. and foreign workers	Ensure the prevailing wage system reflects real-world norms by retaining the 2009 prevailing wage guidance.	DOL rescinded a final rule significantly changing prevailing wage levels and has sought information from the public on how the system should be revised. DOL has announced its intention to publish a new proposed rule in the Spring of 2022.
Innovation and job growth	Expand the International Entrepreneur rule, admit L-1A managers and executives opening a new office for an initial period of two years, and expand use of the National Interest Waiver (NIW) for entrepreneurs who will bolster the U.S. economy.	DHS withdrew the proposed rule to eliminate the International Entrepreneur Parole Rule and publicized the availability of the program for use. No changes proposed to expand options for L-1A nonimmigrants and NIW beneficiaries.
H-1B program	Ensure that H-1B adjudications are consistent with statute and regulations and halt or rescind H-1B regulations published in the fall of 2020.	The administration has rescinded the Buy American Hire American Executive Order, the DOL Prevailing Wage Rule, and the DHS Wage Selection Rule. DHS did not finalize the H-1B Strengthening Regulation and rescinded the H-1B computer programmer memo.
H-2B program	Ensure availability of visas and consistency in H-2B adjudications.	DHS and DOL announced an increase of 20,000 additional H-2B visas for workers with start dates on or before March 30, 2022,with a 6,000 visa set aside for nationals of Guatemala, Honduras and El Salvador. Concerns with consistent adjudication of H-2B petitions and high demand for available H-2B visas remain.
EB-5 program	Ensure that EB-5 policies are revised to allow flexibility to accommodate fluctuations in business operations and the economy, including elimination of the redeployment requirement.	The EB-5 Modernization Final Rule was vacated and DHS dismissed its appeal of the decision. USCIS also issued a policy manual update on investment of loan proceeds to comply with a court order. The EB-5 Regional Center program lapsed on June 30, 2021. Despite the lapse, USCIS continues to hold EB-5 regional center related applications in abeyance and processing related benefit applications. Legislative efforts to restore and modify the program have been unsuccessful to date

Chart 12: Ensure the State Department (DOS) Is Properly Resourced to Provide Fair and Efficient Consular Processing (Read AILA Recommendations Chapter 12)

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No administrative action taken or implemented

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	AILA Recommend­ations	Biden Administr­ation Actions
Consular affairs	Elevate the position to be co-equal with other Deputy Assistant Secretary positions in the State Department.	No action.
Visa processing	To address pandemic-related backlogs, DOS should automatically extend the validity of expiring visas, permit visa revalidation from the United States, and protect LPRs from falling out of status because of travel restrictions.	DOS has expanded in-person interview waiver eligibility for certain immigrant visa applicants and extended the validity of visa fees until September 30, 2022. DOS has not otherwise implemented necessary streamlining recommendations.
	Reinstate authority for consular officers to waive interviews for low-risk non­immigrants to ensure efficiency.	DOS has expanded in-person interview waiver eligibility for a broad range of nonimmigrants. DOS also allowed certain students subject to regional COVID-19 bans with valid visas to travel to the U.S. without seeking an exemption.
	Establish policy for consular officers to articulate the reasons for visa denials.	No action.

Related Resources

• Immigration Impact: Immigration Detention and Enforcement Are a Mixed Bag in Biden’s First Year - December 17, 2021
• Immigration Impact: Biden’s Border Ambitions Fall Short in a Year of Setbacks and Continued Focus on Deterrence - December 14, 2021
• Immigration Impact: The Immigration Policy Successes and Failures of the Biden Administration - December 8, 2021