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Immigration Provisions in the Biden Unity Plan

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On July 8, the campaign of former Vice President Joe Biden released its long-awaited “Unity Plan,” a joint platform created by supporters of Biden, as well as those of the socialist firebrand Senator Bernie Sanders (I-Vt.). The 110-page document touches on almost every policy issue at stake in the 2020 presidential election, including immigration. The,

On July 8, the campaign of former Vice President Joe Biden released its long-awaited “Unity Plan,” a joint platform created by supporters of Biden, as well as those of the socialist firebrand Senator Bernie Sanders (I-Vt.). The 110-page document touches on almost every policy issue at stake in the 2020 presidential election, including immigration.

The “unity plan” is the result of the strength of Sanders’ brand of democratic socialism. Although Sanders officially withdrew from the Democratic Party’s presidential primary contest, his effect on the 2020 Democratic primary was profound. Building on his momentum from his 2016 run, the self-described socialist moved the politics and policies of his fellow candidates to the left almost single-handedly.

This pressure to move to the left impacted Joe Biden, who voted for the Secure Fence Act and who has suggested that a border wall would stop “tons” of drugs from coming into the country. His initial immigration plan suggested creating a pathway to citizenship for the 14.3 million people in the United States illegally, legalizing temporary agricultural guest workers, and giving states and localities the ability to petition for visas themselves. The unity plan shares some similarities with that document, but diverges in other areas.

The plan mainly addresses immigration enforcement. First and foremost, Biden reaffirms his commitment to provide a pathway to citizenship for every single illegal alien in the United States. This goes far beyond previous suggestions to amnesty so-called “Dreamers” or even farmworkers. This calls for the largest amnesty in American history, with absolutely zero reforms to stop future flows of illegal entrants.

The unity plan also calls for eliminating all executive actions taken by the Trump Administration since January 2017, including the president’s travel ban and the successful agreements made with the Northern Triangle countries and Mexico to slow the arrival of asylum-seeking aliens.

The plan would halt removals for 100 days to allow for a government review of Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) and end the use of private facilities to house ICE inmates. Private facilities currently house a significant number of ICE detainees. Eliminating private detention without building new federal facilities would shackle ICE’s ability to house dangerous criminal aliens.

Incredibly, the plan suggests, “Enforcement should sanction employers, not workers. End workplace raids and ensure that I-9 audits do not undermine workers’ ability to organize and assert their rights.”

This is completely contradictory. Workplace enforcement is ICE’s best tool at sanctioning employers. Employers subjected to relentless worksite pressure by ICE will not hire illegal aliens. How can ICE sanction employers without the use of worksite raids? How would I-9 audits differ from worksite raids if an employer’s I-9 forms reveal that there are numerous illegal workers present?

Outside of enforcement, the unity plan calls for an increase in overall levels of legal immigration. Further, Biden calls for a refugee ceiling of 125,000 annually, a stark contrast to the current ceiling of 13,000. Unlike other parts of immigration law, the refugee ceiling is solely created at the discretion of the president and does not require congressional approval. The plan suggests exempting STEM PhD program graduates from any visa caps, without clarifying whether the degree came from an American university or not.

The plan “reaffirms family migration as a cornerstone of U.S. immigration policy” and “prioritize(s) family reunification, including by eliminating family-based green card backlogs and reforming the system to speed up family-based visas.” This completely contradicts the will of the American public who generally support moving the United States to a merit-based immigration system rather than one based simply on chain migration.

Finally, the unity plan states, “Democrats believe that our fight to end systemic racism in our country extends to our immigration system, including the policies at our borders and ports of entry, detention centers, and within immigration law enforcement agencies and their policies and operations” [emphasis added]. This declaration reveals that the plan’s authors reject the notion that opposition to widespread immigration is rooted in anything other than nativism, xenophobia, and racism.

Biden’s advocates did reject some of Sanders’ most radical proposals, such as eliminating immigration enforcement agencies and decriminalizing illegal border crossings. But even still, what remains in the Biden unity plan is anathema to advocates of immigration reform.

Instead of moving to a merit-based system, the unity plan proposes simply increasing total numbers and keeping chain migration as the “cornerstone” of our system. Instead of giving ICE and CBP the tools they need to do their congressionally-authorized job, the unity plan proposes to shackle and audit them for at least 100 days. Instead of prioritizing the safety of American citizens and legal immigrants, the unity plan encourages the growth of dangerous sanctuary jurisdictions.

Biden’s unity plan is notably radical in the immigration sphere for a major presidential candidate. No serious presidential campaign has ever suggested the kind of sweeping reforms presented in this plan. If these ideas became law, they would represent the most sweeping change to the immigration system in our country since the 1965 Immigration and Nationality Act.

Source: Immigration Provisions in the Biden Unity Plan

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The Green Card Process Through the Lens of a DMV Visit

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As an immigration attorney, I try to provide clients with a basic, yet insightful, understanding of various aspects of a complex immigration system. It’s not always easy, but I often find analogies to something commonplace can be helpful.  One analogy I’ve found to work well to explain the green card process beyond describing its mere,

As an immigration attorney, I try to provide clients with a basic, yet insightful, understanding of various aspects of a complex immigration system. It’s not always easy, but I often find analogies to something commonplace can be helpful.  One analogy I’ve found to work well to explain the green card process beyond describing its mere sequence of form filings likens the process to a visit to a Department of Motor Vehicles (DMV) office.

In my practice area of business immigration law, green card processes are mostly employment-based and involve the successive filing of a labor certification application, immigrant petition, and adjustment of status application (with the first not always required and the latter two sometimes eligible for concurrent filing). So I’ll refer to these types of filings in describing the analogy here.  But variations of the analogy may be equally applicable to other types of green card processes, such as those in which the aspiring permanent resident will apply for an immigrant visa overseas rather than adjustment of status within the United States, as well as those based on family relationships and those available to asylees and refugees.

The trappings of a visit to the DMV, no matter the state, may be familiar to you: the issuance of a waiting number determining your place in a queue, followed by a long wait for your number to be called at one of several counters to file required paperwork, followed yet again by a lengthy wait for your paperwork to be processed, and eventually – hopefully – approved without issue.  The counter at which you’ll be called, and the length of the corresponding queue (or maybe in some fortunate instances, the absence of one altogether), often depends on specific factors, such as the type of service you’re seeking.

Just as you’re issued a waiting number upon entry into a DMV office, aspiring permanent residents are issued a priority date when the first major filing in their green card process (either the labor certification application or immigrant petition) is submitted.  The priority date is the date this first filing is submitted and determines, once the immigrant petition is approved, the aspiring permanent resident’s place in any existing queue to apply for adjustment of status.

Similar to how you wait at the DMV for your number to be called to file your paperwork at the appropriate counter, aspiring permanent residents face varying wait times for their priority date to be “called” at a designated “counter” to apply for adjustment of status.  The “counter” in the green card process at which aspiring permanent residents must apply for adjustment of status is based on a combination of two main factors: their immigrant classification (which, when speaking with clients, I refer to as their “green card category”) and their country of chargeability (which I refer to as their country of birth).  Aside from some significant exceptions outside of the employment-based green card process,[1] the law limits the supply of green cards available each fiscal year.  Because the law allocates this limited supply based on a combination of both immigrant classification and country of chargeability, queues form at “counters” where the demand for green cards exceeds the available supply.  And the more severely demand exceeds supply, the longer the queue will be. This analogy helps to show why EB-2 and EB-3 immigrants born in India and China are often confronted with waits lasting many years for their priority date to be “called” at their designated counters,[2] while EB-2 and EB-3 immigrants born in most other countries often face no such queue.  In technical terms, the existence of a queue at a given “counter” means the availability of green cards associated with that counter’s classification and chargeability combination is “retrogressed.”  If there’s no queue, green card availability at that counter is “current.”

A visit to the DMV often entails a wait of several hours sitting and keeping watch of your designated counter at it serves the visitors who arrived before you until your own number is finally called.  Likewise, many aspiring permanent residents monitor the often plodding, month-to-month movement of “cut-off dates” in the Bureau of Consular Affairs’ monthly Visa Bulletins for the designated “counter” at which they must apply for adjustment of status.[3]  The Visa Bulletin for a given month contains various charts showing whether a queue for filing an adjustment of status application exists for any classification and chargeability combination, and if so, how long the queue is.  Combinations for which there is no queue are assigned a “C” notation, indicating that green card availability is current and that the adjustment of status application can thus be filed at any time that month, including in concurrence with an immigrant petition if it has not already been approved, and assuming any prerequisite labor certification has been granted. Combinations for which there is a queue, and for which green card availability is thus retrogressed, are denoted by a “cut-off date,” with older dates reflecting longer queues.  Aspiring permanent residents seeking to adjust status at a “counter” at which green card availability is retrogressed can track their place in the queue by comparing their priority date with the applicable cut-off date each month.  Priority dates that fall before the applicable cut-off date in a given month are those that have been “called,” indicating that much like counters at which green card availability is current, an adjustment of status application can be filed at any time that month, including in concurrence with an immigrant petition if it has not already been approved, and assuming again that any prerequisite labor certification has been granted.

Like processing of paperwork filed at a counter at the DMV, processing of an adjustment of status application may take a long time.  But eventually – hopefully – the application is approved without issue.  And unlike a visit to the DMV, having qualified counsel during the green card process can make all the difference in one’s chance of success.

[1] For example, “immediate relatives” (spouses and children of US citizens, and parents of US citizens if the citizen is at least 21 years old) are exempt from annual numerical limits on green card availability. INA 201(b)(2)(A)(i).
[2] Aspiring permanent residents for whom the queue for applying for adjustment of status involves a wait of several years, such as EB-2 and EB-3 immigrants born in India and China, commonly change jobs or employers in the course of their wait. Such a change can require a restart of the green card process since employment-based green card processes are generally job and employer specific.  But to allow aspiring permanents residents who change jobs or employers to keep their place in queue, the law permits them to retain their priority date under certain conditions if they are the beneficiary of a previously approved EB-1, EB-2, or EB-3 immigrant petition, and likewise become the beneficiary of an approved EB-1, EB-2, or EB-3 immigrant petition based on their new job or employer. 8 CFR 204.5(e). 
[3] US Citizenship and Immigration Service also publishes monthly updates indicating whether to use the Visa Bulletin’s Dates for Filing charts or its Final Action Dates charts, to determine whether an adjustment of status application may be filed.

Source: The Green Card Process Through the Lens of a DMV Visit

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