I. The Current Political Climate
Following the conclusion of the 2020 regular election, Democrats in Congress had suffered several stinging defeats in the House of Representatives, despite keeping majority control of the House, but had begun to close the gap on the Republicans’ control of the Senate (following the 2020 regular election for the Senate, the Democrats held 48 seats and the Republicans held 50 seats). Both races for Georgia’s two Senate seats were deemed within an applicable margin of error and, as a result, both races were subjected to a special runoff election that concluded on January 5th, 2021. Following a bitter two month fight for this special election, both of Georgia’s Democratic candidates for Senate were announced as the winners of the special election; these two wins granted the Democratic Party exactly half of the seats in the Senate and, as a result of holding a tie-breaking vote in the Senate from Vice-President Kamala Harris, majority control of the chamber. The Democratic Party’s newly minted control of both the legislative and executive branches will undoubtedly be a tremendous boon to President Biden when attempting to enact his priorities. President Biden should have the ability to enact legislation without seeking compromise from the Republican members of Congress and he should be able to ignore many of the procedural hurdles that he would have faced from a divided government. From a practical standpoint, this will allow President Biden and the Democratic party to wield aggressive control of the legislative agenda, should they so choose, and will likely significantly reduce the amount of time it would take to pass bills if, in fact, the Democratic Party in Georgia had not flipped both Senate seats. This unified government, however, is subject to change; in 2022, the House and Senate will be subject to another election cycle and it is entirely possible that Democrats could lose seats in both the House and Senate and turn control over to the Republican Party. Democratic strategists are acutely aware of this possibility and, as a result, will be attempting to push as much legislation as possible through Congress prior to the next, upcoming election cycle. Most political analysts expect that many pieces of significant legislation will be passed over the next two years, subject to one hurdle: President Biden’s initial, and somewhat continued, insistence on expanding bipartisanship and reducing polarization in Congress. As long as President Biden seeks to expand bipartisanship he will likely be forced to slow the legislative process in order to negotiate deals that both parties support, and this may stymie aggressive legislative reform.
II. Current Executive Orders in Effect
Since President Biden’s first day in office, the Biden Administration has launched a headlong assault on the policies of the previous administration and has sought to aggressively pursue immigration reform. The following list of immigration related executive actions are chronological from their time of enactment, starting on January 20th, and this list is current through January 28th, 2021.
- EO 13986: Ensuring a Lawful and Accurate Enumeration and Apportionment Pursuant to the Decennial Census
- Reverses prior administration’s policy and ensures that all residents of a state will be counted by the decennial census, regardless of their immigration status or status as a U.S. citizen or legal resident. Issued on January 20th, 2021.
- EO 13993: Revision of Civil Immigration Enforcement Policies and Priorities
- Revokes an executive order from the previous administration that had prevented sanctuary cities from receiving federal funding. Issued on January 20th, 2021.
- Proclamation on Ending Discriminatory Bans on Entry to the United States
- Proclamation that revokes EO 13780 and Proclamations 9645, 9723, and 9983; effect is to end the so-called Muslim Ban that was introduced in 2017. Issued January 20th, 2021.
- Memorandum to Department of Homeland Security: Preserving and Fortifying Deferred Action for Childhood Arrivals (DACA)
- Instructs the Department of Homeland Security to strengthen the regulations that created DACA and defers the removal of certain undocumented immigrants brought to the U.S. as children. Issued on January 20th, 2021.
- Proclamation on the Termination Of Emergency With Respect To The Southern Border Of The United States And Redirection Of Funds Diverted To Border Wall Construction
- Proclamation that halts construction on the U.S.- Mexico border wall, stops the diversion of funds to the project, and lifts the National Emergency order that was first issued to allow for such funding diversion. Issued January 20th, 2021.
III. Future Legislative Reform
In addition to these executive actions, President Biden has sent his proposal for legislative reform of the U.S. immigration system to Congress, which consists of substantial changes to existing U.S. immigration law. The proposal, titled the U.S. Citizenship Act of 2021 (the “Proposed Act”) seeks to modernize and refocus the U.S. immigration system to be more humanitarian. Included in the Proposed Act is a provision called the NO BAN Act, which seeks to prohibit religion-based discrimination in immigration policy and limits the future power of the executive office to issue immigration bans. It also recharacterizes the language of immigration law, such as changing the term “alien” to “noncitizen.” The Proposed Act also introduces a system that will create a pathway to expedited citizenship for those living in the United States without legal status by granting applicable individuals with, first, temporary legal status then, second, permanent residency after five years, and, third, U.S. citizenship following eight years of U.S. residency and the completion of certain naturalization checks. Certain groups, such as DACA Dreamers, agricultural workers, and temporary protected status residents, would be granted immediate permanent residency. Additionally, the Proposed Act intends to reform the family-based immigration system by reducing the amount of administrative barriers to receiving a visa while increasing immigration caps per country. The Proposed Act also eliminates the one-year deadline for filing asylum requests. Finally, and more relevant to business-focused individuals, the Proposed Act intends to place a premium on immigration-related economic growth by 1) reducing employment visa backlogs, 2) reducing wait times, 3) eliminating visa caps, 4) providing the Department of Homeland Security with the ability to adjust visa acceptance on a macroeconomic scale for the purpose of reducing unfair competition to American workers, and 5) eliminating the ability for children of permanent residents to “age out” of immigration benefits received by their parents.
President Biden - without question - has the opportunity to force a legislative reform of the immigration system through Congressional action. The true extent to which President Biden and the Democratic Party seek to reform the immigration system, however, is unclear as President Biden may choose to take a more amiable approach with the Republican party. Nevertheless, we expect that the U.S. Citizenship Act of 2021 will be passed, in one form or another, by the end of 2021 with an effective date sometime in 2022.