President Biden’s Executive Actions on Immigration
Center for Migration Studies
February 2, 2021
President Joseph R. Biden Jr. set forth an ambitious immigration agenda in the early days of the Biden-Harris administration, committing both to reverse harmful policies implemented by the Trump administration and to revitalize the US immigration system more broadly. In his first 100 days in office, President Biden articulated his immigration and refugee protection goals and reversed many of his predecessor’s policies in a series of executive actions. He also raised the refugee admissions cap for FY 2021 and endorsed the US Citizenship Act of 2021, which would represent the most sweeping immigration reform legislation in decades and create the largest legalization program in US history. President Biden’s executive actions address the situation at the southern border, root causes of irregular migration from Central America, impacts of climate change on migration, COVID-19 travel restrictions, and fortification of existing legal immigration pathways, as well as commitments to create new ones.
President Biden has issued the following immigration-related Executive Orders (EOs) and administrative policy changes since his first day in office (Click the title below to jump to a description of each EO/policy change):
Proclamation on Ending Discriminatory Bans on Entry to The United States – January 20, 2021
Preserving and Fortifying Deferred Action for Childhood Arrivals (DACA) – January 20, 2021
Memorandum Reinstating Deferred Enforced Departure for Liberians – January 20, 2021
Proclamation on Ending Discriminatory Bans on Entry to The United States – January 20, 2021
This proclamation lifts certain restrictions on immigrant visas for nationals of Burma, Eritrea, Iran, Venezuela, Kyrgyzstan, Libya, North Korea, Somalia, Sudan, Syria, Tanzania, and Yemen. US Embassies and Consulates in those countries can resume visa processing and must ensure that pending visa and waiver applications are not prejudiced by the previous bans.
From 2017-2020, former President Trump issued a series of travel bans preventing nationals of Muslim-majority and select African countries from entering the United States. President Biden rescinded the travel bans (Executive Order 13780, Proclamation 9645, Proclamation 9723, Proclamation 9983) effective immediately. In his proclamation, Biden characterized the travel bans as “a stain on our national conscience.”
The initial travel ban (Section 3 of the “Executive Order 13769”) suspended the issuance of visas to nationals from Iran, Iraq, Sudan, Syria, Libya, Somalia, and Yemen for 90 days. The ban drew sharp criticism because it targeted Muslim-majority countries, and led to protests at airports across the country and legal challenges. In subsequent versions of the travel ban, the Trump administration added non-Muslim-majority countries and extended the timeframe for the ban. In a 5-4 decision, the Supreme Court ultimately upheld (in Trump v. Hawaii) the third version of the travel ban, Presidential Proclamation 9645. The bans have halted the admissions of targeted groups and prevented families from reunifying or even from visiting one another. Muslim Americans and religious leaders of many faiths praised Biden for ending the ban.
Executive Order on the Revision of Civil Immigration Enforcement Policies and Priorities – January 20, 2021
This order revised immigration enforcement policies and priorities and rescinded the Trump administration Executive Order 13768, which called for the prompt removal of all undocumented immigrants living in the United States and withdrew federal funding from so-called sanctuary states. Biden’s executive order directs relevant federal agencies to issue new guidance about immigration enforcement priorities.
Former administrations prioritized removal of immigrants convicted of serious crimes, those who threatened national security, and recent border entrants. A 2019 analysis from the Transactional Records Access Clearinghouse (TRAC) at Syracuse University on Trump-era enforcement found that “despite rising numbers of individuals detained by Immigration and Customs Enforcement (ICE), fewer and fewer individuals who have committed and been convicted of serious crimes are among them.” The Trump administration’s enforcement priorities were so broad that they effectively set no priorities at all.
They also came at an enormous cost to mixed-status families; i.e., those with undocumented and US citizen members. Using data from the Center for Migration Studies (CMS), a Marshall Project report estimated that 909,000 mixed-status families would face financial hardship and risk falling into poverty if their undocumented breadwinners were deported. The costs of deportation to families include financial hardship and the trauma of their separation and division.
In response to Biden’s Executive Order, Acting Department of Homeland Security (DHS) Secretary David Pekoske immediately issued a memorandum directing DHS agencies to review enforcement policies and provide recommendations for revised policies within 100 days. The memorandum ordered a 100-day pause on the removal of noncitizens, with exceptions for noncitizens who pose a danger to national security; who were not in the United States before November 1, 2020; who voluntarily waive any rights to remain in the United States; and who the acting ICE Director determines must leave the country. The memorandum also established the following enforcement priorities:
- Those who have engaged in or are suspected of terrorism or espionage, or whose arrest is otherwise necessary to protect national security;
- Individuals apprehended at the border or ports of entry while attempting to unlawfully enter the United States on or after November 1, 2020; and
- Individuals released from incarceration on or after January 20, 2021, who have been convicted of an aggravated felony and who pose a threat to public safety.
On January 26, 2021, Judge Drew Tipton of the US District Court of the Southern District of Texas granted a 14-day temporary restraining order blocking the 100-day pause on removals ordered in Pekoske’s memorandum. On February 23, 2021, Judge Tipton granted a preliminary injunction prohibiting the government from implementing the 100-day pause. The ruling, however, does not block the administration’s enforcement priorities.
According to a Washington Post report, ICE deportations fell to a record low in April 2021. ICE deported 2,962 people in April, the lowest monthly total on record and a 20 percent decline from March. If ICE deportation numbers continue at this pace, it may deport fewer than 100,000 people in 2021, the lowest number since the agency’s founding in 2003.
Preserving and Fortifying Deferred Action for Childhood Arrivals (DACA) – January 20, 2021
This memorandum directs the DHS Secretary and Attorney General to take all actions necessary and consistent with applicable law to preserve and fortify the DACA program. DACA provides relief from deportation, work authorization, and advance parole for unauthorized immigrants who were brought to the United States as children. Established in June 2012, the program has more than 600,000 active recipients who are “deeply integrated in US communities and enjoy long standing connections to the United States, the country that most of them know as their only home.”
The Trump administration took several actions to dismantle the DACA program. It first announced that it would end the program in September 2017, and DHS stopped processing new applications. In June 2020, the US Supreme Court ruled that the administration’s attempt to terminate the program was unlawful. However, instead of resuming the program, former Acting DHS Secretary Chad Wolf issued a memorandum curtailing DACA and barring first-time applications. On November 14, 2020, a federal district court judge ruled that the memorandum was illegal because Wolf had been improperly appointed to his position and lacked the authority to issue the order. The judge ordered the administration to reinstate DACA in December 2020, after DHS did not take action to do so after his November ruling. The January 20, 2021 memorandum stated that: “DACA reflects a judgment that these immigrants should not be a priority for removal based on humanitarian concerns and other considerations, and that work authorization will enable them to support themselves and their families, and to contribute to our economy, while they remain.”
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 – January 20, 2021
President Biden halted construction of the wall along the US-Mexico border and stated that funds for border wall construction would be reallocated following a review of construction contracts. In April 2021, the Department of Defense announced that it is coordinating with interagency partners to cancel border wall projects and contracts.
Throughout his presidency and the 2016 campaign, President Trump promised to build a wall spanning the US-Mexico border. He also promised that Mexico would pay for the wall. However, this did not occur, and work on the wall cost American taxpayers approximately $15 billion dollars. Moreover, a disagreement between Congress and the administration over funding for the wall triggered the longest government shutdown in US history.
In order to fund the wall without consent from Congress, Trump issued Proclamation 9844, “Declaring a National Emergency Concerning the Southern Border of the United States.” CMS raised questions about the need for a wall and the national security rationale for declaring an emergency. It found that the multiyear decline in US undocumented population had been driven by Mexican nationals returning to Mexico, and since 2010, about two-thirds of new arrivals into the US undocumented population had overstayed temporary visas, a practice the wall would do nothing to stop.
Border communities and environmentalists have called on Biden to take steps to remediate environmental and cultural destruction caused by construction of the wall. Hundreds of miles of borderlands, including sacred Native American sites and protected public lands, have been bulldozed, blasted, and parched over the past four years due to construction of the wall, with little environmental assessment or oversight. In April 2021, DHS announced plans for initial steps to correct the damage caused by wall construction. The agency will fix holes in the Rio Grande Valley Flood Barrier System and soil erosion over a 14-mile stretch of border wall in San Diego, California.
“Like every nation, the United States has a right and a duty to secure its borders and protect its people against threats,” Biden wrote in the proclamation. “But building a massive wall that spans the entire southern border is not a serious policy solution.”
Executive Order on Ensuring a Lawful and Accurate Enumeration and Apportionment Pursuant to the Decennial Census – January 20, 2021
President Biden reversed a Trump administration order issued in July 2020 that sought to exclude undocumented immigrants from the 2020 Census. Under the 14th Amendment of the US Constitution, the census counts the number of people in each state every 10 years. Between January 3 and January 10 following a census year, the president is required to submit a statement with census numbers to Congress, which Congress uses to apportion seats among the states for the House of Representatives.
Trump’s executive order stated his intentions to submit a reapportionment plan to Congress that would have excluded all undocumented immigrants in January 2021. Trump requested two sets of numbers: one set with the whole number of persons in each state and the other with the number of undocumented immigrants in each state, which would be subtracted from the whole number for the purposes of apportioning House seats by state. Experts say it is not possible to offer an accurate count in the way Trump requested.
The order seemed to be retaliatory towards sanctuary cities and states that disagreed with his immigration priorities. It provided that states adopting policies that encourage undocumented immigrants to enter the country and those that have a large population of undocumented immigrants should not be rewarded with greater representation in the House of Representatives.
In July 2020, 23 states, immigrant rights advocates, and other groups filed several lawsuits challenging Trump’s executive order in federal court, blocking the plan from going into effect. The Trump administration appealed those rulings to the US Supreme Court, which ruled in December 2020 that it was premature to consider the matter because states had not yet been injured. Biden’s executive order ensures that undocumented immigrants are included and states will not lose congressional representation or federal funding due to an incomplete census count.
Memorandum Reinstating Deferred Enforced Departure for Liberians – January 20, 2021
President Biden reinstated Deferred Enforced Departure (DED) for Liberians through June 30, 2022. The memorandum also restores DED for those who were previously protected before it expired on January 10, 2021. DED provides temporary protection against deportation and work authorization to nationals of designated countries authorized by the president at his discretion.
Certain Liberians were first offered Temporary Protected Status (TPS) by the George H.W. Bush administration because of the Liberian Civil War. Subsequent administrations extended TPS or DED to Liberians due to ongoing violence and later the Ebola crisis. The National Defense Authorization Act for Fiscal Year 2020 established the Liberian Refugee Immigration Fairness (LRIF) program. LRIF is the first US legalization program in many years. However, USCIS did not approve a single application in the first four months of the program, which was originally set to expire in December 2020. COVID-19 further slowed application processing. On December 27, 2020, President Trump signed into law the Consolidated Appropriations Act, which extended the deadline to apply for LRIF relief to December 20, 2021. Biden’s memorandum extending DED provides Liberians with protection against deportation and work authorization as they apply for permanent residence.
The memorandum also directs the DHS Secretary to ensure ease of application and timely adjudication of applications for LRIF benefits. In order to qualify for the LRIF program, applicants must: (1) properly complete a Form I-485 Application; (2) be a national of Liberia; (3) have been continuously physically present in the United States during the period between November 20, 2014 and the date they file a Form I-485 Application; and (4) have not been convicted of an aggravated felony, two or more crimes involving moral turpitude, or persecution of any person on account of race, religion, nationality, political opinion, or membership in a particular social group. CMS has estimated that potentially 10,000 Liberians are eligible for LRIF relief.
On January 20, 2021, President Biden endorsed the US Citizenship Act of 2021 memorializing his commitment to modernize the US immigration system. On February 18, 2021, Senator Bob Menendez and Congresswoman Linda Sanchez introduced the bill. If passed by Congress, the bill would represent the most sweeping immigration reform package since 1990 and would create the largest legalization program in US history, including the Immigration Reform and Control Act of 1986. In particular, the Act would:
- Provide an eight-year pathway to citizenship for approximately 11 million undocumented immigrants. Undocumented persons physically present in the United States on or before January 1, 2021 would be able to apply for temporary Lawful Prospective Immigrant (LPI) status immediately and permanent residence after five years. Immigrants who engaged in essential critical labor or services during the COVID-19 public health emergency, H-2A non-immigrants (temporary agricultural workers), and Temporary Protected Status (TPS) recipients would also be eligible for LPI status.
- Reduce the residence requirement for naturalization from 5 years to 3 years for all lawful permanent residents.
- Make noncitizens who entered the United States as children, including and DACA recipients, eligible for lawful permanent residence (LPR).
- Make nationals of countries designated for Temporary Protected Status (TPS) or Deferred Enforcement Departure (DED) who have been continuously physically present in the United States since January 1, 2017 and were eligible for TPS or DED on that date, eligible for permanent residence.
- Make workers who performed agricultural labor or services for at least 2,300 hours or 400 workdays, including seasonal or temporary work, for a five-year period immediately preceding the date they file their adjustment of status application, eligible for LPR status.
- Eliminate bars that prohibit immigrants from returning to the United States for three years or 10 years if they lived without status in the United States for more than 180 days but less than one year or over one year, respectively.
- Change the word “alien” to “noncitizen” in all immigration laws in an effort to recognize the United States as a nation of immigrants.
- Reform family- and employment-based immigration by recapturing millions of previously unused visas to reduce green card backlogs and by eliminating per-country visa caps.
- Expand eligibility for V visas, which allow certain immigrants to join their petitioning family members in the United States while they wait for their green cards to become available.
- Provide immigration relief for permanent LGBTQ couples that cannot get married in their jurisdictions. Permanent partners would be considered equal to a married couple. Children of immigrant permanent partners would also be eligible for immigration relief.
- Eliminate the one-year deadline for filing asylum applications in the United States and provide funding to reduce asylum application backlogs.
- Expand refugee and asylum processing in the Western Hemisphere and provide resources to support and strengthen processing and resettlement capacity.
- Establish the Central American Refugee Program, which would allow nationals of El Salvador, Honduras, Guatemala, or any other Central American country designated by the Secretary of State to apply for refugee resettlement.
- Creates a Special Immigrant Status program for Syrians who worked for the United States government in Syria and for surviving spouses and children of US government employees abroad who worked for 15 years or were killed in the line of duty.
- Creates the United States Citizenship and Integration Foundation and other immigrant integration initiatives that would promote expansion of citizenship preparation assistance for LPRs and naturalization applicants and provide grants to assist individuals who are eligible for LPI and LPR status.
- Prohibit discrimination based on religion and limit presidential authority to issue discriminatory travel bans in the future.
- Supplement existing border resources with technology and infrastructure to expedite screening, enhance the ability to process asylum seekers, and detect narcotics and other contraband.
- Direct the DHS Secretary to establish programs that provide alternatives to detention.
- Provide funding for training and continuing education for Border Patrol agents to promote safety and professionalism.
- Create the Department of Homeland Security (DHS) Office of Professional Responsibility to investigate criminal and administrative misconduct by agents.
- Seek to reduce immigration court backlogs, expand training for immigration judges, and improve technology for immigration courts.
- Provide funding for legal orientation programs and counsel for children and vulnerable individuals.
- Address underlying causes of migration by increasing assistance to El Salvador, Guatemala, and Honduras, and establishing processing centers throughout Central America for individuals that are eligible for lawful migration to the United States or other partner countries.
- Reinstate the Central American Minors program, which would grant special immigrant status to certain Central American children who have a parent that is lawfully present in the US.
- Create a Central American Family Reunification Parole Program to unite families with approved family-based petitions.
- Increase the number of diversity visas from 55,000 to 80,000 and raise the cap on U visas (victims of certain crimes) from 10,000 to 30,000.
- Provide dependents of H-1B visa holders (highly skilled workers) with work authorization and prevent their children from aging out of the system and being forced to leave the United States.
- Provide that foreign graduates of US universities with advanced STEM degrees would not be subject to numerical visa limits.
- Create a pilot program for regional economic development visas, which authorizes the DHS Secretary to allow admission of 10,000 additional immigrants per year whose employment is essential to economic development strategies of local communities.
- Require DHS and the Department of Labor (DOL) to establish a commission of labor, employer, and civil rights organizations to make recommendations to improve the employment verification process.
- Provide immigrant workers who suffer serious labor violations with greater access to U visa relief and protect workers who are victims of workplace retaliation from deportation to allow labor agencies to interview them and investigate their situations.
A more detailed overview of the US Citizenship Act is available here.
DHS Statement on the Suspension of New Enrollments in the Migrant Protection Protocols Program – January 20, 2021
DHS announced that it was suspending the Migrant Protection Protocols (MPP), effective January 21, 2021. MPP, also known as the Remain in Mexico policy, was established by the Trump administration in January 2019. It allowed border officers to send non-Mexicans who sought asylum at the US southern border to Mexico to await their immigration hearings. Prior to the MPP, asylum seekers were able to wait for their hearings in the United States. Over 67,000 migrants have been subject to the program and many are still waiting for their hearings in camps along the southern border. Under the DHS announcement, no new individuals will be enrolled in the program.
On February 12, 2021, the Biden administration announced plans to allow tens of thousands of asylum seekers who were forced to remain in Mexico under MPP to enter the United States. The first wave of asylum-seekers with active cases under MPP were admitted to the United States on February 19, 2021. On March 3, 2021, DHS established a website to provide updates on the wind-down of the MPP program and DHS’s plan to admit individuals enrolled in MPP to complete their immigration proceedings. MPP enrollees can register online or over the phone to start the process, and DHS will confirm they have a pending immigration court case. After they test negative for COVID-19, enrollees are transported by facilitating organizations to the designated port of entry for processing into the United States. As of May 2021, 10,000 asylum seekers subject to the MPP program have been admitted to the United States.
Proclamation on the Suspension of Entry as Immigrants and Non-Immigrants of Certain Additional Persons Who Pose a Risk of Transmitting Coronavirus Disease (January 25, 2021)
On January 25, 2021, the Biden administration reinstated COVID-19 travel restrictions on most non-US citizen travelers from Brazil, Ireland, the United Kingdom, 26 European countries in the Schengen zone, and South Africa. These restrictions were issued in response to rising cases of COVID-19 globally, and recently discovered variant strains of the virus found in the United Kingdom, South Africa, and Brazil. Any foreign nationals who have been to these countries within 14 days of their scheduled travel to the United States will be denied entry. These travel restrictions will not apply to:
- US lawful permanent residents (LPRs);
- Noncitizen spouses, children, parents, or legal guardians of US citizens or LPRs;
- Noncitizen siblings of US citizens or LPRs who are unmarried and under the age of 21;
- Prospective adoptees seeking to enter the United States pursuant to IR-4 or IH-4 visas;
- Noncitizens traveling at the invitation of the US government for purposes related to containment or mitigation of the coronavirus;
- Noncitizens with C-1, D, or C-1/D nonimmigrant visas as air or sea crewmembers;
- Noncitizens with A-1, A-2, C-2 or C-3 visas (foreign government officials and their family members), E-1 visas (employees of Taipei Economic and Cultural Representative Office (TECRO), also known as Taipei Economic and Cultural Office (TECO) and their family members), G-1, G-2, G-3, G-4, NATO-1 through NATO-4, or NATO-6 visas (employees of international organizations and NATO); or whose travel falls within the scope of Section 11 of the United Nations Headquarters Agreement;
- Noncitizens who are members of the US Armed Forces and their spouses and children;
- Noncitizens whose entry would further certain US law enforcement objectives; and
- Noncitizens whose entry would be in the national interest.
Executive Order on the Establishment of Interagency Task Force on the Reunification of Families – February 2, 2021
Hundreds of children are still separated from their families in the aftermath of the Trump administration’s “zero tolerance” border policy. In April 2018, Attorney General Jeff Sessions directed US Attorney’s Offices along the southwest border to prosecute and detain every adult caught crossing the border illegally. Migrant children cannot be in US custody for more than 20 days, unless they are in licensed childcare facilities. In order to keep parents in detention centers indefinitely, the Trump administration separated children from their parents. Children were taken into custody by the Department of Health and Human Services (HHS).
The policy was roundly criticized as cruel and inhumane. Dr. Colleen Kraft, president of the American Academy of Pediatrics, described the policy as “government-sanctioned child abuse” after visiting one the facilities housing separated children. A 2019 report from the HHS Inspector General found that “separated children exhibited more fear, feelings of abandonment, and post-traumatic stress than did children who were not separated,” and “some separated children expressed acute grief that caused them to cry inconsolably.” The report highlighted the challenges facing HHS staff and their inability to meet the mental health needs of children traumatized by family separation.
After months of protests, Trump issued Executive Order 13841 on June 20, 2018 to halt family separation. However, in practice, the policy continued covertly. Overall, more than 5,500 children were separated from their parents, and hundreds remain separated.
On January 26, 2021, the Department of Justice (DOJ) rescinded the “zero tolerance” policy. Acting Attorney General Monty Wilkinson issued a memorandum to federal prosecutors nationwide stating the DOJ would return to its longstanding policy of making individual assessments on whether to bring criminal charges against border crossers.
Biden’s February 2nd EO established a Family Reunification Task Force that will work to reunite families. The Task Force consists of department heads of the DHS, DOS, HHS, the Attorney General, and other officers from those agencies. The task force was tasked with:
- Identifying all children who were separated from their families at the US-Mexico border between January 20, 2017 and January 20, 2021.
- Facilitating the reunification of each of the identified children with their families.
- Consulting with the children, their families and representatives or other stakeholders concerning the families’ preferences, parental rights, and the children’s well-being.
- Providing regular reports to the President including an initial progress report within 120 days and interim reports every 60 days.
The EO also revoked Executive Order 13481 and condemned “the human tragedy that occurred when our immigration laws were used to intentionally separate children from their parents or legal guardians (families).”
On May 3, 2021, the Biden administration announced that four migrant families who were separated under the prior administration’s “zero tolerance” border policy would be reunited. The four parents – who were deported without their children – were given humanitarian parole, allowing them to return to the United States. Another 30 deported migrant parents are expected to reunite with their children in the United States in May and June of 2021. The task force estimates that more than 1,000 families remain separated.
Executive Order on Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans – February 2, 2021
This order aims to improve the US immigration system, to ensure applications and petitions are adjudicated efficiently, and to develop strategies to promote integration, inclusion, and citizenship. The order:
- Directs the Secretary of State, Attorney General, and DHS Secretary to review all recent regulations, policies, and guidance that have limited immigration. Within 90 days of the executive order, they are charged with submitting a plan to the President describing the steps their respective agencies will take to advance this policy.
- Directs the White House Domestic Policy Council (DPC) to convene a Task Force on New Americans that will focus on promoting immigrant integration and inclusion.
- Establishes an Interagency Working Group to develop a national strategy to promote naturalization.
- Directs the DOS Secretary, Attorney General, and DHS Secretary to develop a plan to improve the naturalization process and present it within 60 days.
- Revokes the Presidential Memorandum of May 23, 2019, which called for more stringent enforcement of immigration sponsorship requirements.
The Trump administration took numerous steps to impede legal immigration. According to a 2019 report from CMS, immigrants advance in employment, income, and education as they graduate to permanent residence and citizenship. These advances, in turn, allow them to contribute more to their communities. Yet, a number of regulations and policies have made it more difficult for immigrants to become permanent residents and US citizens, including:
- A DHS rule, which expanded the public charge grounds for inadmissibility. On March 9, 2021, the rule was permanently blocked after DHS stated that it would no longer pursue appeals of judicial decisions blocking enforcement of the rule. As a result, the decision of the US District Court of the Northern District of Illinois, which vacated the rule nationwide in November 2020, stands. The rule sought to consider for the first time non-cash medical, housing, and food benefits in making public charge determinations. It also heavily weighed factors such as income and education against admission, with the intended effect of denying permanent residence to lower-income, working-class persons. The rule faced numerous legal challenges and had a “chilling effect” – even before it went into effect — on families seeking public assistance for their children. CMS estimated that 25 million undocumented persons and 212,000 nonimmigrants would be directly affected by the rule because they live with a US citizen or LPR family member who can petition for a visa for them.
- A proclamation requiring green card applicants to prove they will have access to health insurance or the financial resources to cover all their health needs.
- USCIS fee hikes, which the US District Court of the Northern District of California blocked in September 2020.
Executive Order on Creating a Comprehensive Regional Framework to Address the Causes of Migration, to Manage Migration Throughout North and Central America, and to Provide Safe and Orderly Processing of Asylum Seekers at the United States Border – February 2, 2021
On February 2, 2021, President Biden issued an Executive Order outlining a multi-pronged approach to managing migration from Central and North America. Biden said his administration would work closely with civil society groups, international organizations, and governments in the region. The EO seeks to strengthen the asylum and refugee protection systems in North and Central American countries and to restore the US asylum system, particularly along the US-Mexico border.
The order directs an interagency team to prepare a “Root Causes Strategy” to address the underlying factors leading to migration and a “Collaboration Management Strategy” to enhance protection and create more legal migration avenues for those in need of protection. It also directs:
- The Secretaries of DOS and DHS to review mechanisms to identify and process individuals from Northern Triangle countries (El Salvador, Guatemala, and Honduras) who are eligible for refugee resettlement in the United States and to consider reinstating and expanding the Central American Minors (CAM) Program, which permits Central American children to reunify with their legally present parents in the United States. On March 10, DOS announced it would restart the CAM program.
- The DHS Secretary and the Director of the Centers for Disease Control and Prevention (CDC) to develop policies to facilitate safe and orderly processing of asylum claims at the US southern border and to review procedures for individuals who were placed in expedited removal proceedings at the border.
- The DHS Secretary to review and determine whether to terminate or modify the Migrant Protection Protocols (MPP) program and consider a phased strategy for individuals who were subject to the program to safely enter the United States. On January 20, 2021, DHS suspended MPP, which returned non-Mexicans who sought asylum at the US southern border to Mexico to wait for their immigration hearings.
- The DHS Secretary to stop implementing the Prompt Asylum Case Review and Humanitarian Asylum Review Process, programs that lessen the amount of time asylees have to prepare for credible fear interviews and limit their contact with legal representatives.
- The DHS Secretary to submit a report within 120 days to the President with recommendations for creating a more efficient and timely process, which adheres to standard of fairness and due process.
- The Attorney General and DHS Secretary to examine rules, regulations, decisions, and internal guidelines for adjudicating asylum claims and to produce joint regulations addressing the circumstances in which a person should be considered a member of a “particular social group.”
The executive order announces the administration’s intention to terminate Asylum Cooperative agreements between the United States and Northern Triangle countries. These agreements allow the United States to remove certain migrants seeking asylum at US borders to Northern Triangle countries where they will have to seek protection. The agreements severely restricted access to asylum because the Northern Triangle countries do not have comparable asylum systems to the United States. On February 5, 2021, the United States withdrew from its agreement with Guatemala.
The EO also revoked the following executive actions:
- Executive Order 13767, issued on January 25, 2017, which directed executive agencies to secure the southern border and prevent illegal immigration into the United States, and called for immediate construction of a wall along the southern border.
- Proclamation 9880, issued on May 8, 2019, which deemed immigrants who entered the United States without inspection ineligible for asylum.
- Presidential Memorandum of April 29, 2019, which prevented certain asylum seekers from pursuing any other form of immigration relief, required adjudication of asylum cases within 180 days of filing, imposed an application fee for asylum claims, and barred asylum seekers who entered the United States without inspection from receiving work authorization while their applications were pending.
- Presidential Memorandum of April 6, 2018, which prevented DHS from releasing immigrants from detention while their immigration cases were pending.
- Presidential Memorandum of April 4, 2018, which deployed the National Guard to secure the southwest border.
Biden’s EO also directs review of the following policies to determine whether to terminate or modify them:
- Order Suspending the Right to Introduce Certain Persons From Countries Where a Quarantinable Communicable Disease Exists
- Control of Communicable Diseases; Foreign Quarantine: Suspension of the Right to Introduce and Prohibition of Introduction of Persons into the United States from Designated Foreign Countries or Places for Public Health Purposes
- Aliens Subject to a Bar on Entry Under Certain Presidential Proclamations; Procedures for Protection Claims
- Asylum Eligibility and Procedural Modifications
- Implementing Bilateral and Multilateral Asylum Cooperation Agreements Under the Immigration and Nationality Act
- Designating Aliens for Expedited Removal
On March 24, 2021, President Biden tasked Vice President Kamala Harris with coordinating efforts with Central American countries to address the root causes of migration. Harris is leading diplomatic efforts with Mexico and Central America’s Northern Triangle countries, to make it safer for people to remain in their home countries and apply for visas and green cards there, instead of taking dangerous irregular migration routes to the United States.
Executive Order on Rebuilding and Enhancing Programs to Resettle Refugees and Planning for the Impact of Climate Change on Migration – February 4, 2021
On February 4, 2021, President Biden issued an Executive Order on fortifying programs to resettle refugees and to examine the impact of climate change on migration. In advance of signing the order, Biden stated his intent to lift the annual cap on refugee admissions in the United States to 125,000 for fiscal year 2022 and to increase the cap for 2021 as well. Former President Trump lowered the cap on refugee admissions each year of his presidency and set the cap at 15,000 admissions for 2021.
The US Refugee Admissions Program (USRAP) was established by The Refugee Act of 1980. In the program’s 40-year history, the United States has resettled more than 3.1 million refugees. Over time, refugees have been highly successful in the United States. They become US citizens, homeowners, English speakers, workers, business owners, college-educated, insured, and computer literate at high rates. Resettled refugees are also the most heavily vetted entrants into the United States, and they can enhance US economic and security interests. USRAP formerly enjoyed bipartisan support. However, the Trump administration cast this life-saving program as a threat, burden, and at odds with his America First ethic. Beyond setting record low admissions ceilings, Trump issued orders on extreme vetting (EO 13815 and Presidential Memorandum on March 6, 2017), and that required the consent of states and localities to the resettlement of refugees in their jurisdictions (EO 13888). The later policy was declared unlawful by a federal judge, after many states and localities said they would continue to welcome refugees.
Biden’s February 4th order revoked EO 13815, EO 13888, and the Presidential Memorandum on March 6, 2017, which directed DHS and DOS to implement more rigorous vetting processes for visa applicants. It also directs relevant agencies to enhance and review the refugee resettlement program, strengthen refugee vetting, and build the program’s adjudication capacity to ensure an efficient, safe and timely process. It also commits to prioritizing the resettlement of women, children, and others facing persecution because of their gender or sexual orientation. It calls for an interagency examination of the impact of climate change on migration and how to address the needs of immigrants displaced by climate change. The order also directs a review of the Special Immigrant Visas (SIV) program for Iraqi and Afghan Allies to ensure these visas are issued efficiently and to evaluate if the United States should extend SIV programs to persons who assist the US government in conflict areas, regardless of their nationality.
Memorandum for the Secretary of State on the Emergency Presidential Determination on Refugee Admissions for Fiscal Year 2021 – April 16, 2021
On April 16, 2021, President Biden signed an emergency presidential determination that temporarily kept in place the Trump administration’s historically low refugee admissions cap of 15,000 for FY 2021 but returned to allocating refugee admissions based on region. Under the former president’s directive, stringent restrictions were placed on accepting refugees from certain African and majority-Muslim countries and priority was given to Christians who faced religious persecution and Iraqis who worked for the US military.
A Proclamation on the Suspension of Entry as Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting Coronavirus Disease 2019 – April 30, 2021
On April 30, 2021, the Biden administration imposed new COVID-19 travel restrictions on most non-US citizens traveling from India. The restrictions were prompted by reports of over 300,000 average new daily COVID-19 cases in India that week and a new variant strain of the virus circulating in India. Any foreign national who has been to India at any point 14 days before their scheduled travel to the United States will be denied entry. These travel restrictions will not apply to US citizens and lawful permanent residents (LPRs), certain noncitizen family members of US citizens and LPRs, and noncitizens with specific visas or whose entry would be in the national interest.
Memorandum for the Secretary of State on the Emergency Presidential Determination on Refugee Admissions for Fiscal Year 2021 – May 3, 2021
On May 3, 2021, President Biden increased the refugee admissions ceiling for FY 2021 from 15,000 to 62,500. Biden also reaffirmed his intention to raise the ceiling to 125,000 for FY 2022. This commitment was part of his campaign platform and a pledge he made when announcing his February 4th EO on refugee resettlement and climate migration. The May 3rd presidential determination on refugees includes 22,000 slots for Africa, 6,000 for East Asia, 4,000 for Europe and Central Asia, 5,000 for Latin America/Caribbean, 13,000 for Near East/South Asia, and 12,500 that are unallocated. Biden acknowledged that it would be challenging to resettle 62,500 refugees this year (through the first six months of FY 2021 only 2,050 refugees had been admitted) and to meet its 125,000 goal for FY 2022 because of the “the damage of the last four years.” He said his budget to Congress “reflects my commitment to the goal of 125,000 refugee admissions” and to “American leadership and American values when it comes to refugee admissions.”
February 2, 2021, Updated: May 24, 2021