International Law and Immigration

Immigration Update: February 2021

President Biden Proclamation Revokes the Travel Bans from primarily Muslim countries, and from, largely African countries

President Biden issued a presidential proclamation revoking Trump Administration nationality-based travel bans targeting primarily Muslim-majority and African countries.  Under this proclamation, the State Department is directed to pursue the processing of visa applications for individuals from affected countries consistent with applicable law and visa processing procedures.

As a result of the proclamation, nationals of Burma, Eritrea, Iran, Kyrgyzstan, Libya, Nigeria, North Korea, Somalia, Sudan, Syria, Tanzania, Venezuela, and Yemen will no longer be subject to restrictions on nonimmigrant and/or immigrant visa.[1]

Under the order, the Secretary of State shall direct all Embassies and Consulates, to resume visa processing, consistent with applicable law and visa processing procedures, including any related to COVID-19, and in a manner consistent with the revocation of the Executive Order and Proclamation. It is required that with in 45 days, a report is provided to the President, reflecting the number of visa applicants currently being considered for waivers under the revoked bans and a plan for expeditiously adjudicating their visa applications; a proposal to ensure reconsideration/reapplication of visa applications of those individuals which were denied under the revoked ban; and a plan to ensure that visa applicants are not prejudiced by a previous denial under either ban if they choose to re-apply for a visa. 

Furthermore, within 120 days, the Secretary of State and the Secretary of Homeland Security, in consultation with the Director of National Intelligence, shall provide to the President a report, that includes a description of screening and vetting procedures, a review of foreign government information sharing practices to improve the efficacy of its own practices, and recommendations to improve screening and vetting activities and review of the social media identifiers in such vetting and screening procedures. 


[1] President Biden’s “Proclamation on Ending Discriminatory Bans on Entry to The United States”, January 20, 2021,  https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/proclamation-ending-discriminatory-bans-on-entry-to-the-united-states/

President Biden Executive Order on the Revision of “Civil Immigration Enforcement Policies and Priorities”

This memorandum directs the Department of Homeland Security to conduct a review of policies and practices concerning immigration enforcement. It also sets interim policies during the course of that review, including a 100-day pause on certain removals to enable focusing the Department’s resources where they are most needed. However, State of Texas sued the U.S. government to stop the January 20 memorandum from taking effect, and on January 26, a judge then issued a temporary restraining order against the moratorium, resulting in no pause on deportations at present[2]. In light of those unique circumstances, the Department must surge resources to the border in order to ensure safe, legal and orderly processing, to rebuild fair and effective asylum procedures that respect human rights and due process, to adopt appropriate public health guidelines and protocols, and to prioritize responding to threats to national security, public safety, and border security. This memorandum should be considered Department-wide guidance, applicable to the activities of U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP), and U.S. Citizenship and Immigration Services (USCIS)[3].


[2] State of Texas. V. The United States, Case 6:21-cv-00003, https://www.texasattorneygeneral.gov/sites/default/files/images/admin/2021/Press/1%20Complaint_0.pdf

[3] President Biden’s Executive Order on the Revision of “Civil Immgration Enforcement Policies and Priorities”, January 20, 2021 https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-the-revision-of-civil-immigration-enforcement-policies-and-priorities/

Presidential Memorandum to Preserve and Fortify DACA

President Biden’s memorandum entitled, “Preserving and Fortifying Deferred Action of Childhood Arrivals (DACA)”, directs the Secretary of Homeland Security, in consultation with the Attorney General, to take actions as they deem appropriate, consistent with applicable law, to preserve and fortify DACA, referencing the 2012 Obama-era DHS guidance. However, the program remains the subject of a Texas lawsuit[4] that could result in its termination. The Biden Administration has included legislative relief for “Dreamers” in a proposed comprehensive reform immigration bill[5].


[4] State of Texas V. The United States et.al, Civil Action No. 1:18-CV-00068

[5] President Biden’s Memorandum on Preserving and Fortifying DACA https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/preserving-and-fortifying-deferred-action-for-childhood-arrivals-daca/

President Biden’s 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”

The Proclamation[6] directs to pause further work on each construction project on the southern border wall within seven days and paused the obligation of funds related to the construction of that wall. Furthermore, the order calls for rescinding the national declaration of emergency at the southern border place in February, 2019. The order also calls for compiling detailed information on all southern border wall construction contracts, the completion status of each wall construction project, and the funds used for wall construction since Feb. 15, 2019, and directs federal agencies to formulate a plan within 60 days to redirect border wall funds and “resume, modify, or terminate” segments of the structure that remain under construction.


[6] President Biden’s Proclamation , January 20, 2021 “Termination Of Emergency With Respect To The Southern Border Of The United States And Redirection Of Funds Diverted To Border Wall Construction” https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/proclamation-termination-of-emergency-with-respect-to-southern-border-of-united-states-and-redirection-of-funds-diverted-to-border-wall-construction/

President Biden’s Memorandum on “Reinstating Deferred Enforced Departure for Liberians”

Deferred Enforced Departure (DED), of those Liberians originally granted TPS,  is extended through June 30, 2022, to defer the removal of any Liberian national, or person without nationality who last habitually resided in Liberia, who is present in the United States and who was under a grant of DED as of January 10, 2021. The memorandum also lists seven exceptions of categories of people for whom the extension does not apply. The memo also allowed continued Employment Authorization of these individuals through June 30, 2022. The President also directed the Secretary of Homeland Security to review the LRIF application procedures administered by USCIS to ensure that applications may be filed with ease and that they are promptly adjudicated[7].


[7] President’s Biden Memorandum on “Reinstating Deferred Enforced Departure for Liberians”, January 20, 2021, “https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/reinstating-deferred-enforced-departure-for-liberians/

Proposed H-4 EAD Rule Withdrawn for Review

On January 25, 2021, the Biden administration withdrew from review the Trump administration’s proposed rule that would have rescinded the H-4 EAD program[8].

For close to five years, H-4  EAD holders have been living with uncertainty that their work authorization would be eliminated at any time and are being targeted by delaying the process to issue it in a timely manner.  Due to the continuous delay, there has been ongoing litigation challenging H-4 work authorization.

Approximately 100,000 H-4 EAD holders have been concerned about their ability to continue to work. They have often been hindered from moving forward with their lives in the United States due to the uncertainty and inability to maintain their careers. Especially during COVID, delayed processing by USCIS has cost many to lose their jobs, lose insurance, ability to apply or renew driver’s license, ability to travel to their home country and make them vulnerable to control, are among the many issues the spouses who are legally allowed to work in the United States have to go through. This change would allow employers to no longer have to worry about business disruptions and creating “back-up” plans for valuable employees on EADs. However, USCIS continued delays still poses a serious concern


[8] Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization,- Withdrawn, OIRA Conclusion of EO 12866 Regulatory Review, 01/25/2021, https://www.reginfo.gov/public/do/eoDetails?rrid=128849

USCIS making exorbitant delays in adjudicating applications For H-1B Spouses

Deepika v. USCIS[9], a new lawsuit against USCIS, points out the current processing times make it “mathematically” impossible for the spouses to remain employed. An extension status of H-4 dependent is filed with an H1B application, and after its approval, an EAD application is adjudicated.  Before March 2019, USCIS would typically adjudicate an H-4 dependent petition and the H-4 EAD application at the same time as the H-1B petition from the same family. Premium processing of the H-1B petition would ensure adjudication within 15 days. The wait times for H-4 EADS grew after USCIS changed its policies, including requiring H-4 spouses to supply biometrics. In Kolluri v. USCIS[10] charged the new policy to supply biometrics was to make it more difficult for the spouses of H-1B visa holders to retain their work authorization. “On March 30, 2019, the Agency’s Senior Policy Council determined it would begin collecting biometrics for H-4 extension applications filed on Form I-539,” according to the plaintiffs. “This change exploded Form I-539 processing times from an . . . average of 3.77 months.” “Each of the H-4 plaintiffs have previously given biometrics in conjunction with an application for immigration benefits either at a consulate or in the United States,” noted the plaintiffs. “The agency’s insistence on obtaining new biometrics prior to adjudication of the H-4 extension is a pretext. The agency’s bad faith insistence on biometrics for H-4 visa holders is telling, especially when ‘DHS is not aware of any risk factors – such as fraud, criminal activity, or threats to public safety or national security – associated with H–4 dependent spouses as a whole that would support imposing [additional burdens].’

The current new lawsuit argues that the wait times for extensions for spouses of H-1B visas far exceed those of other applicants for extensions. “Presently, the agency processing times for H-4 visa extensions submitted on Form I-539 are 19-24.5 months (California), 8-10 months (Texas), 7-9.5 months (Nebraska),” according to the memorandum in support of the plaintiff’s motion for a preliminary injunction. “Regardless of which service center adjudicates the petition, the applicant is mathematically guaranteed to lose immigration status and employment authorization.” The spouses of H-1B visa holders cannot legally work without USCIS approving their extension applications. They have no choice but to stop working due to USCIS processing delays. The memorandum for the plaintiff asks: “The ultimate question for the court is whether it is reasonable for these people to lose their jobs because the government agency fails to do its job.”[11]


[9]  Deepika v. USCIS, CASE NO. 1:20-cv-3680-RCL, https://nfap.com/wp-content/uploads/2021/02/GONA-Memo.pdf

[10] Kolluri v. United States Citizenship and Immigration Service, 3:20-cv-02897

[11] This is an abstract of the article entitled “USCIS Taking Two Years To Process Many Applications For H-1B Spouses” by Stuart Anderson, Leadership Strategist, Forbes, February 9, 2021. The full article can be found at https://www.forbes.com/sites/stuartanderson/2021/02/09/uscis-taking-two-years-to-process-many-applications-for-h-1b-spouses/?sh=259a03613276

President Biden’s Executive Order on Ensuring a Lawful and Accurate Enumeration and Apportionment Pursuant to the Decennial Census

This Order revokes President Trump’s Executive Order 13880 of July 11, 2019 (Collecting Information About Citizenship Status in Connection With the Decennial Census)[12] and the Presidential Memorandum of July 21, 2020 (Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census)[13], and directs the Secretary of the U.S. Department of Commerce to ensure that the apportionment base and state-level tabulations include all inhabitants without regard to immigration status.


[12] President Trump’s Executive Order 13880 of July 11, 2019 (Collecting Information About Citizenship Status in Connection With the Decennial Census)”https://www.federalregister.gov/documents/2019/07/16/2019-15222/collecting-information-about-citizenship-status-in-connection-with-the-decennial-census

[13] Presidential Memorandum of July 21, 2020 (Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census), https://www.federalregister.gov/documents/2020/07/23/2020-16216/excluding-illegal-aliens-from-the-apportionment-base-following-the-2020-census

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