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Ogletree Deakins | A Review of U.S. Immigration Policies Implemented by Presidents Trump and Biden Before, During, and After the COVID-19 Pandemic

Written on March 30, 2021 |

With the new President, we expect a less restrictive approach toward immigration, however, the COVID-19 virus has significantly impacted global travel and immigration since March 2020.  As such, the current and past Administrations have implemented travel and immigration restrictions in the name of safety.  These measures have ranged from simple travel restrictions, to outright travel bans, medical testing requirements, and even the suspension of certain nonimmigrant work visas and immigrant visas issued by consulates outside of the United States.  While we are very optimistic about a more flexible approach to immigration and travel, our optimism has been tempered due to COVID-19.

The impact of the former President on business related visas and long-term implications for U.S. immigration

Over the course of four (4) years in office, the prior President implemented restrictive immigration measures, which were expanded and exacerbated due to COVID-19.  While it may be too early to comprehend the long-term impact of those policies, we are dealing with residual short term effect.

Based on Executive Authority, presidents can implement seemingly minor changes that have wide-ranging and long-lasting impacts on the immigration system without much oversight. It is here that President Trump’s impact on immigration will likely be most long lasting.  For example:

  • requiring employment-based applicants for green cards to attend in-person interviews, which strained USCIS resources and caused significant backlogs in available green cards,[1]
  • Changing USCIS’ mission;
  • eliminating “courtesy” expedited processing of certain dependent applications,[2]
  • requiring dependent applicants to attend biometric appointments,[3] and
  • adjudicating work permits for dependents within timeframes far exceeding normal processing times

Although seemingly minor compared to the “Muslim Ban,” which the former President implemented within days of taking office, the changes above have significantly influenced and strained the U.S. immigration system, and will likely continue doing so into Biden’s presidency.  For instance, applications for work permits or “Employment Authorization Documents” (EADs) are taking well over 10 months partly due to the need to process biometrics.  Families relying on secondary income have encountered unforeseen financial hardship due to a spouse’s termination.  Spousal EADs generally must be valid for a dependent spouse to work in the United States, but significant gaps in work authorization, resulting from these delays, have forced employers to put individuals on unpaid leave or terminate altogether.

In contrast, while it is also too early to fully appreciate the influence of Biden’s administration on the U.S. immigration system, he has taken considerable steps to revoke or reframe the prior administration’s policies.  These include:

  • Requesting federal immigration agencies to conduct reviews of Trump-era policies;[4]
  • Revoking the “Public Charge Rule” for green card applicants;[5]
  • Proposing legislation to overhaul certain portions of U.S. immigration, including creation of a pathway to permanent residence for certain undocumented foreign nationals present in the country and/or those holding DACA, protected status (TPS) or seasonal workers and eliminating per country limits on green cards;
  • Revoking the immigrant visa ban, put into place by President Trump;[6]
  • Not renewing the Nonimmigrant visa ban put into place by President Trump; and
  • Revoking the “Muslim Ban”[7]

Although President Biden’s administration will be more “immigrant friendly” the pace at which policies can be revoked may initially be slow.  This is due to the resources required to implement Executive Order changes within government agencies and for more sweeping changes, for example a comprehensive immigration reform bill would require an act of Congress.  In addition, the immediate focus of President Biden is not business immigration or travel.  Instead, he is prioritizing asylum law, refugee status, and undocumented migration.  As such, we will be experiencing the residual effects from Trump policies in business immigration for some time.

The Influence of COVID-19 on Business Immigration in the United States

Since March 2020, Presidents Trump and Biden have implemented multiple measures aimed at regulating the flow of people into the United States. With regard to the European Schengen Area, the U.K., and Ireland, there have been a number of measures implemented by the United States directly affecting the ability of millions to secure nonimmigrant work visas and simply travel to the country.  At this time, travel bans exist for people coming from China, Iran, Brazil, South Africa, the U.K., Ireland, and the 26 countries making up the Schengen Area who were in those areas (including airports) within 14 days of seeking entry to the United States.[8] In addition, since March 2020, the United States has prohibited all “non-essential” travel from Canada and Mexico, with “non-essential” loosely defined as travel for “tourism purposes (e.g., sightseeing, recreation, gambling, or attending cultural events”).[9]  These restrictions do not affect air travel into the United States and the degree to which they are enforced depends on the port of entry through which someone travels, with some locations more adherent to the restrictions than other ports.  At this time, the restrictions are scheduled to expire as of April 21, 2021.  This, however, is subject to further extension.[10]

On  March 2, 2021, the Biden administration changed the criteria for travel permission as an exception to the travel bans covering the European Schengen Area, the U.K., and Ireland, requiring that travelers demonstrate their travel contributes to the U.S. Critical Infrastructure. Notably, the new policy does not impact people coming from other subject countries.  The term “critical infrastructure,” refers to the U.S. Department of Homeland Security’s “Critical Infrastructure Sectors” which include the following:[11]

  • Chemical Sector
  • Commercial Facilities Sector
  • Communications Sector
  • Critical Manufacturing Sector
  • Dams Sector
  • Defense Industrial Base Sector
  • Emergency Services Sector
  • Energy Sector
  • Financial Services Sector
  • Food and Agriculture Sector
  • Government Facilities Sector
  • Healthcare and Public Health Sector
  • Information Technology Sector
  • Nuclear Reactors, Materials, and Waste Sector
  • Transportation Systems Sector
  • Water and Wastewater Systems Sector

In addition, the new policies also revised existing exemptions to include academic travelers, J-1 students and journalists, and F-1 and M-1 students. The reinstated travel bans, as well as the new criteria for travel permission remain in effect indefinitely by President Biden and will undoubtedly influence the ability of business travelers and other non-exempt travelers from the affected countries to enter the United States going forward.

a. Visa Bans

In June 2020, President Trump implemented nonimmigrant and immigrant visa bans.  Specifically, the proclamation suspended the entry of foreign nationals in H-1B, H-2B, L-1 (A/B), J-1 categories, as well as applicable dependents, who were outside of the United States at 12:01 AM EDT on June 24, 2020 and did not hold a U.S. nonimmigrant visa in one of the affected categories and/or another travel document. This generally prevented new visa applicants from obtaining visas in these categories.  Among a select group of exemptions, people physically in the United States on June 24, 2020, those holding valid visas from the affected categories, U.S. lawful permanent residents, and Canadian citizens were exempt from the nonimmigrant visa ban.  In addition, at the same time the Trump administration banned people seeking entry on an immigrant visa (e.g., all employment-based, family-based or Diversity Lottery visas) with the exception of lawful permanent residents of the U.S., U.S. citizens, and children under 21 of U.S. citizens, among a select few others.  At its inception, the nonimmigrant and immigrant visa ban adversely affected a significant group of people worldwide seeking to obtain work-related and immigrant visas. Various National Interest Exception (“NIE”) processes were implemented to permit business travelers  to enter the United States, for example, as long-standing employees of the business and as specialists, managers, or executives.  In October 2020, a U.S. court enjoined the ban from being implemented against employers who could prove “good standing” membership with several professional organizations, including the American Chamber of Commerce and National Association of Manufacturers.  President Biden lifted the “immigrant” visa ban in February 2021 and the “nonimmigrant” visa ban expired as of March 31, 2021.  As such, NIE’s are no longer required in connection with these types of visa processes, however, consulates globally are still taking a limited approach to visa processing due to COVID-19 conditions.

Impact on Travel to the United States from Affected Countries (Ireland, U.K. and Schengen Area)

Based on the Biden administration’s perspective on COVID-19 the travel bans will likely remain in place until the pandemic is considerably under control.  With the implementation of more aggressive preventative measures, including more accelerated vaccine distribution in the United States, the administration will hopefully relax or lift travel bans. However, whether such relaxation or lifting of the bans occurs remains to be seen.

While the “critical infrastructure” standard for granting NIE’s for travel to the U.S. from certain countries signals the current administration’s focus on safety, there are signs that the restriction may be more limited in duration than previously anticipated. First, several U.S. news agencies reported earlier in March 2021 that the U.S. airlines’ main lobbying group, “Airlines for America,” in conjunction with other professional groups, including the U.S. Chamber of Commerce, have pressured the Biden administration to form a plan for lifting the travel bans.[12]  As more organizations and industry groups pressure the administration, the more likely the administration will respond either by way of relaxing the restrictions or implementing alternative means of preventing COVID-19 spread, such as the introduction of electronic vaccine passports.  Second, there appears to be a willingness on the part of some administration officials to lift travel bans in place for Brazil, the U.K., and Europe by mid-May due primarily to the effective widespread vaccine distribution across the United States.[13]

Even still, in the short-term, it appears that the Biden administration’s primary objective is to fight COVID-19, not alleviate the concerns of those groups directly affected by the travel bans.

Authors:

  • Nathan RoyAssociate
  • Cerdiwen KoskiShareholder
[1] USCIS to Expand In-Person Interview Requirements for Certain Permanent Residency Applicants, USCIS (August 28, 2017) https://www.uscis.gov/archive/uscis-to-expand-in-person-interview-requirements-for-certain-permanent-residency-applicants.
[2] How Do I Request Premium Processing? USCIS https://www.uscis.gov/forms/all-forms/how-do-i-request-premium-processing (last updated February 24, 2021).
[3] Id.
[4] Executive Order on Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans, The White House (February 2, 2021) https://www.whitehouse.gov/briefing-room/presidential-actions/2021/02/02/executive-order-restoring-faith-in-our-legal-immigration-systems-and-strengthening-integration-and-inclusion-efforts-for-new-americans/.

[5] See Public Charge Facts.
[6] A Proclamation on Revoking Proclamation 10014, The White House (February 24, 2021) https://www.whitehouse.gov/briefing-room/presidential-actions/2021/02/24/a-proclamation-on-revoking-proclamation-10014/.
[7] Proclamation on Ending Discriminatory Bans on Entry to the United States, The White House (January 20, 2021) https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/proclamation-ending-discriminatory-bans-on-entry-to-the-united-states/.
[8] Travelers Prohibited from Entry to the United States, CDC https://www.cdc.gov/coronavirus/2019-ncov/travelers/from-other-countries.html (February 19, 2021).
[9] Notification of Temporary Travel Restrictions Applicable to Land Ports of Entry and Ferries Services Between the United States and Canada, Fed. Reg., March 19, 2021 (https://www.federalregister.gov/documents/2021/03/19/2021-05878/notification-of-temporary-travel-restrictions-applicable-to-land-ports-of-entry-and-ferries-service).
[10] U.S./Mexico/Canada COVID-19 Travel Update:  Biden Administration Extends Border Restrictions Through April 21, 2021, Ogletree Deakins, https://ogletree.com/insights/u-s-mexico-canada-covid-19-travel-update-biden-administration-extends-border-restrictions-through-april-21-2021/ (April 5, 2021).
[11] Critical Infrastructure Sectors, DHS https://www.cisa.gov/critical-infrastructure-sectors (last updated October 21, 2020).
[12] See Travel Industry Urges New Plan.
[13] See Biden Eyes Relaxed COVID Plans.

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