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Biden Signs More Immigration Executive Orders; Agency Review of Public Charge Rule Mandated

February 03, 2021

President Joe Biden signed three new executive orders relating to immigration on Tuesday. Along with the executive orders issued immediately after his inauguration and the immigration legislative proposal sent to Congress on Day 1 of the new administration, these orders mark a stark new direction in immigration policy to strike a more welcoming tone with respect to immigrants, and to move away from the more restrictive rules and guidelines implemented during the Trump administration.

The executive orders announced today including the following:

  • Restoring Faith in Our Immigration System and Promoting Integration of New Americans

    This executive order requires all agencies involved in the immigration process to conduct a “top-to-bottom” review of recent regulations, policies, and guidance that have created barriers to legal immigration. It elevates the role of the White House in promoting immigrant integration and inclusion, reestablishes a Task Force on New Americans, and rescinds a Trump administration policy of requiring family sponsors to repay the government if a sponsored immigrant receives public benefits.

    Significantly, the executive order also mandates agency review of the Trump administration’s public charge rule. This rule, promulgated in 2019 and subject to multiple lawsuits, redefined the public charge inadmissibility ground, shifting the focus from an analysis of whether an immigrant would be likely to require public benefits in the future, to a current wealth test, and imposed highly burdensome and invasive paperwork requirements on all immigrants, including those sponsored by employers. Should the US Citizenship and Immigration Services determine, after review, that it will rescind the public charge regulation, employment-sponsored immigrants should be able to demonstrate future self-sufficiency as they did prior to the implementation of the public charge rule, using simpler and more easily accessible documentation such as employer offer letters and wage statements.

  • Creating a Task Force to Unify Families

    This executive order creates a task force to work across US government agencies and closely with the White House to reunite families separated at the border under prior immigration policies. The executive order also rescinds a Trump administration order justifying family separation.

  • Developing a Strategy to Address Irregular Migration Across the Southern Border and Creating a Humane Asylum System

    Under this executive order, the Biden administration seeks to reset and improve control over immigration across the Southern border by addressing the root causes of that migration, assisting regional authorities, foreign governments, and international organizations to support other countries’ ability to provide protection for migrants seeking refuge, and to establish a system whereby Central American refugees and asylees can access legal avenues for relief. This executive order also directs the Department of Homeland Security to review the Migrant Protection Protocols (MPP) program. Also known as the “Remain in Mexico” program, MPP required asylees and refugees at the Southern Border to remain in Mexico while awaiting hearings. Finally, this executive order directs the review of certain asylum policies and guidance issued during the past four years.

As discussed above and in our prior alert, the Biden administration previously issued several executive orders dealing with immigration, including a promise to retain and fortify the DACA program, an end to the travel ban from several predominantly Muslim countries, and an extension of the Deferred Departure for Liberians. In addition, the Biden administration has sent a sweeping proposal for immigration reform to Congress.

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Contacts

If you have any questions or would like more information on the issues discussed in this alert, please contact any of the following Morgan Lewis lawyers:

Washington, DC
Shannon A. Donnelly
Eleanor Pelta
Eric S. Bord

Miami
Laura C. Garvin

San Francisco
A. James Vázquez-Azpiri
Christina M. Gonzaga

For additional government-related guidance, learn more about our Washington strategic government relations and counseling practice.