President Biden Issues Executive Order on Review of Trump Immigration Policies

The issue

President Joseph Biden has issued an executive order that instructs federal agencies to conduct a review of regulations, policies and guidance affecting legal immigration, including the public charge rule and naturalization process, among others. The order lauds the contributions of legal immigration and states that the federal government should develop welcoming immigration strategies that promote integration, inclusion and citizenship. Titled “Executive Order on Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans,” the order was released along with two other immigration-related directives aimed at humanitarian immigration programs. In yesterday’s immigration actions, President Biden did not revoke the H/L/J nonimmigrant ban or the immigrant visa ban, each of which is scheduled to expire on March 31, 2021.

General review of existing regulations, policies and guidance

Under the directive, the Departments of Homeland Security, State, and Justice must review any existing immigration regulations, policies and guidance that may be inconsistent with the Biden Administration’s priorities of promoting legal immigration and citizenship. Within 90 days, the agencies must report to the President on barriers that impede access to and adjudication of immigration benefits, and provide recommendations for removal of these barriers. The order identifies the currently enjoined Trump-era USCIS fee rule as an example of agency action that fails to promote access to the legal immigration system.

Review of public charge implementation

Agencies must also conduct an immediate review of their implementation of the public charge rule. The Department of Homeland Security (DHS) is currently implementing the rule, but the State Department is enjoined from doing so pursuant to a federal court injunction. To comply with President Biden’s executive order, agencies must report to the White House within 60 days on the following:

• Effect of pubic charge implementation policies on the Administration’s principle of promoting and welcoming legal immigration;
• Effect of current public charge policy on the immigration system and on public health; and
• Recommendations on revising policies where lawful and appropriate, and communicating policies clearly to reduce fear and confusion.

Public charge regulations are the subject of numerous lawsuits across the United States. The U.S. Supreme Court is currently considering whether to hear two separate challenges to the DHS rule.

Promoting and streamlining naturalization

In addition, within 60 days of the executive order, agencies must develop plans to promote naturalization and to streamline the process of naturalizing to become a U.S. citizen. The plans must specifically address the following areas, among others:

• Eliminate or reduce barriers in the naturalization process, including potential barriers in connection with the N-400 application, fingerprinting, background checks, interviews, and civics and language tests;
• Substantially reduce N-400 processing times; and
• Review whether it is appropriate to reduce the N-400 fee and restore the fee waiver process.

The order also creates an Interagency Working Group on Promoting Naturalization, chaired by DHS, and charged with developing a national strategy to promote naturalization.

What it means

Foreign nationals will not see any immediate changes stemming from the order, but some process and policy changes may result from the policy and process reviews. Significant changes to existing regulations – such as public charge – would need to be implemented through the courts or through further rulemaking.

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.