America as a Welcoming Nation – The First 100 Days of the Biden Administration

AILA publishes a series of 12 charts comparing President Biden’s accomplishments 100 days after entering office with the comprehensive recommendations AILA presented to the president in A Vision for America as a Welcoming Nation. Each of the 12 charts presents a major area of reform and is accompanied by this Executive Summary evaluating how the Biden administration has performed in AILA’s priority areas. A Vision for America as a Welcoming Nation was developed in consultation with AILA’s national policy committees and its network of pro bono volunteer lawyers who represent people in U.S. detention centers.

Read Executive Summary (PDF)


Chart 1: Proclaim a Message of Welcome (Read AILA Recommendations Chapter 1)

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AILA Recommend­ations


Biden Administr­ation Actions
A message of welcome

A message of welcome
Terminate or rescind the Muslim ban. The Muslim ban has been rescinded.
Terminate or rescind the refugee ban. The refugee ban has been rescinded.
Terminate or rescind the asylum bans. (See Chart 4) In progress (see Chart 4 for details on the interim final and final rules known collectively as the “asylum bans.”)
Terminate or rescind the pregnancy ban.  
Terminate or rescind the health insurance ban.  
Terminate or rescind the Public Charge Rule. The Public Charge Rule has been rescinded.
Profession­alism and integrity

Professionalism and integrity
Appoint diverse personnel to immigration agencies. President Biden appointed several officials with diverse backgrounds, but many key leadership positions remain unfilled.
Review hiring practices to remedy improper or politically driven personnel decisions. Overhaul all training protocols at immigration agencies. Freeze hiring until training is implemented. President Biden has requested funding to investigate concerns about white supremacy and ideological beliefs in ICE and CBP.
Stakeholder engagement

Stakeholder engagement
Reopen public engagement with AILA and others. Various government agencies have initiated public stakeholder engagements, met with AILA committees and leadership, and attended the AILA National Spring Conference.
COVID-19 pretextual bans

COVID-19 pretextual bans
Repeal the presidential proclamations banning the lawful entry of foreign nationals to protect the labor market. President Biden repealed the proclamation banning immigrants and allowed the non­immigrant ban to expire.
Rescind or terminate the presidential proclamations banning entry of individuals who pose a risk to transmit COVID-19. President Biden extended country-specific COVID-19 bans for the U.K., Ireland, the Schengen Area, China, and Brazil and established a new ban for South Africa. Temporary restrictions on travel from Canada and Mexico have been extended to May 21, 2021. DOS is also allowing certain students subject to regional COVID-19 bans with valid visas to travel to the United States without seeking an exemption.
Rescind the CDC Title 42 order which blocks and expels asylum seekers based on the pretext of COVID-19 protection.  

Chart 2: Ensure Fairness, Efficiency, and Accountability in the Legal Immigration System (Read AILA Recommendations Chapter 2)
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AILA Recommend­ations


Biden Administr­ation Actions
Efficiency in adjudic­ations

Efficiency in adjudications
Reinstate the “deference” policy. USCIS reinstated the 2004 policy to defer to prior determin­ations of eligibility when adjudicating an extension application and to consider decisions made by other agencies.
Eliminate mandatory interview requirements.  
Ensure consistency in adjudications.  
Stop the “blank space” rejection policy. USCIS has agreed to stop the blank space rejection policy for certain application types and has permitted refiling of certain rejected I-485 applications.
Increase transparency on case processing times and backlog.  
Adherence to USCIS statutory mission

Adherence to USCIS statutory mission
Forbid transfers of funds and personnel from USCIS to CBP or ICE.  
Conduct a full review of the fraud unit.  
Rescind the July 2018 Notice to Appear (NTA) guidance.  
Restore opportunities for people to integrate and naturalize. USCIS announced that it will revert to administering the 2008 civics test for certain applicants. President Biden’s budget requests resources to reduce naturalization backlogs.

U.S. Citizenship Act has provisions to facilitate integration and naturalization.
Strengthen naturalization, parole, and other programs to assist members of the armed forces, veterans, and their families. USCIS announced that it will offer video interviews and naturalization ceremonies for overseas processing of military members and their family members.
Customer Service and Public Engagement

Customer Service and Public Engagement
Reopen liaison channels and improve the InfoMod program. No formal announce­ments have been made, but USCIS has been more responsive to liaison inquiries and providing case resolution. The CIS Ombudsman held stakeholder engagements to solicit feedback on the USCIS Customer Service tools and the Contact Center.
Restructure and empower the Customer Service Division.  
Accessibility to the Immigration System

Accessibility to the Immigration System
Halt the USCIS fee rule, reinstate fee waivers, and maintain reasonable fees. USCIS has agreed not to implement the regulatory changes set out in the final rule, keeping fee waivers and no fees for asylum applications in place.

USCIS issued a notice seeking public input on how USCIS can make the immigration system more accessible.
Rescind the Public Charge Rule. The Public Charge Rule has been rescinded.


Chart 3: Restore Integrity, Fairness, and Efficiency to the Immigration Courts (Read AILA Recommendations Chapter 3)
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AILA Recommend­ations


Biden Administr­ation Actions
Independent immigration court system

Independent immigration court system
Urge Congress to create an Article I immigration court system independent from DOJ.  
Judicial independ­ence and fairness

Judicial independence and fairness
Implement new policies to restore judicial independence, fairness, and consistency to the immigration courts.  
Install new leadership in key posts. Jean King was named Acting Director of EOIR. No political appointments have been announced.
Address the Trump adminis­tration’s politicized hiring of immigration court judges and BIA members. The Biden administration issued an executive order requiring agencies to remove barriers inhibiting “fair, efficient adjudicat­ions.”

The president’s initial budget proposal calls for additional funding to hire more immigration judges.
Rescind Attorney General opinions, and policies that stripped immigration judges of authority to manage dockets and ensure due process (Matter of Castro-Tum, Matter of L-A-B-R-, and Matter of S-O-G-& F-D-B-). None, though a proposed regulation that would have essentially eliminated adminis­trative closure has been enjoined.
Due process

Due process
Rescind immigration judge case completion quotas.  
Rescind problematic performance metrics and deadlines on the BIA and immigration court. Many problematic policies remain in place. EOIR issued a new memo on case processing and rescinded a memo related to BIA filing deadlines. A federal court enjoined a regulation also related to BIA filing deadlines.
Rescind the EOIR rule imposing new deadlines on asylum applications. None, though the rule is currently enjoined.
Rescind the “no dark courtroom policy.”  
Notice procedures

Notice procedures
Provide notice of hearings in compliance with the Supreme Court’s decision Pereira v. Sessions.

Review all in absentia removal orders to correct for government error.
 
EOIR fee rule

EOIR fee rule
Stop EOIR proposed rulemaking that would increase application fees. None, though on 1/18/21, a federal court enjoined this rule.
Immigration Adjudication Centers

Immigration Adjudication Centers
Stop the use of “black box” IACs, which severely undermine due process.  

Chart 4: Ensure the Fair and Humane Treatment of Migrants at the Border (Read AILA Recommendations Chapter 4)
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AILA Recommend­ations


Biden Administr­ation Actions
Protection for asylum seekers

two silhoutted figures raise the American flag
Rescind the CDC Title 42 order that blocks and expels asylum seekers under the pretext of COVID-19 protection. The Biden adminis­tration has not rescinded or addressed the Title 42 order. Mass expulsions continue to occur although the administration is no longer expelling un­accompanied children and some families.
Rescind the November 2018 asylum ban. President Biden rescinded the proclamation that led to the asylum ban. The interim final rule remains in place but is under review.
Rescind the July 2019 third country asylum ban. This ban is currently enjoined. The final rule remains in place but is under review.
Rescind the Migrant Protection Protocols (MPP). Per Executive Order, a review of MPP was initiated, new enrollments suspended, and all future hearings canceled. Since February, the administration has paroled in some people subject to MPP. The majority of MPP cases are currently excluded from this initial phase of processing, including many Black immigrants who were never “eligible” for MPP enrollment.
Rescind the Asylum Cooperative Agreements with Guatemala, Honduras, and El Salvador. DOS announced the suspension of and plans to terminate the Asylum Cooperative Agreements.

The administration has signed agreements with Mexico, Guatemala, and Honduras to deploy the countries’ militaries to impede migration.
Rescind the Prompt Asylum Claim Review (PACR) and Humanitarian Asylum Review Process (HARP) programs. On 2/2/21, the President rescinded these programs but has not revoked governing policy memoranda.
Reception of migrants at the border

a migrant group crosses train tracks
Establish an Office of Migrant Protection and scale-up of screening and protection capacity at high-volume ports of entry. The administration scaled up capacity to address increased numbers of un­accompanied children seeking protection.
Authorize asylum officers to grant asylum as part of the credible fear process The adminis­tration signaled that asylum reforms are under consideration.
Fair and humane border enforcement

A person holds up a sign that says families belong together
Eliminate the Consequence Delivery System. No progress.
Suspend prosecutions for illegal entry and reentry. The adminis­tration rescinded the Zero Tolerance policy but has not addressed prosecutions for illegal entry or reentry.
Halt the practice of metering and practices restricting the number of asylum seekers at the border. DHS is reassessing asylum processing at the border.
Halt the use of the fast-track expedited removal and reinstatement of removal procedures. No progress.
Restore the practice of releasing recent border arrivals while immigration court proceedings are pending. The administration has opted to forgo detention for most asylum seekers previously in MPP.
Border wall and barrier construction

migrants at the border wall
Rescind the Executive Order and halt all plans for a wall along the southern border. President Biden issued a proclamation limiting the use of emergency funding for border wall construction. FY 2022 Biden Adminis­tration budget proposal contains no funding for border wall construction.
Chart 5: Restore Asylum Law and Protection for Victims of Crime and Refugees (Read AILA Recommendations Chapter 5)
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AILA Recommend­ations


Biden Administr­ation Actions
Restoration of asylum law and procedures

a copy of the application for asylum and for withholding of removal
DOJ and DHS should reverse Trump-era policies that exclude victims of domestic violence, gang persecution, and other categories of people from protection. DOJ and DHS are compiling a report and plan to issue joint regulations on the meaning of “particular social group” for asylum purposes.
Halt policies that establish extreme restrictions on asylum including the “death to asylum” regulation or the regulation justified on security bars. The “death to asylum” rule is currently enjoined. The rule justified on security bars is currently delayed but the adminis­tration has reopened the comment period.
Address the ever-growing asylum backlog of cases before the USCIS Asylum Offices. The president’s budget included discretionary funding to address the backlog.
Barriers for crime victims

a silhoutted group of adults and children against a sunset
Revoke the August 2019 ICE fact sheet permitting deportation of U visa applicants before USCIS determines prima facie eligibility. Restore the 2009 policy on U visas.
Reduce the U visa backlog by hiring additional adjudicators. FY2022 budget includes a request for funding to modernize systems and operations.
Implement the statutorily authorized plan to issue work authorization to people who have filed U visa applications under INA §214(p)(6).
Create a parole program for U visa applicants abroad as required by 8 CFR §214.14(d)(2). No progress.
Refugee protection

a group of migrants and children cross train tracks
Resettle at least 125,000 refugees in FY2021 and increase resettlement from Central and Southern America. On 4/16, President Biden walked back his earlier pledge to increase refugee resettlement to 62,500 and lowered the figure to 15,000 for FY2021. The administration will revise the refugee cap by 5/15. The president revoked policies restricting refugee resettlement.
Restart the Central American Minors (CAM) program to parole children to reunite with parents in the U.S. The adminis­tration announced plans to restart the CAM program.
Chart 6: Guarantee Legal Assistance and Counsel (Read AILA Recommendations Chapter 6)
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AILA Recommend­ations


Biden Administr­ation Actions
Government funded legal counsel

scales of justice
Commit to providing every person facing removal with legal counsel paid for by the government if they cannot afford it. The President’s bill authorizes the appointment of counsel at government expense. The President’s preliminary FY2022 budget mentions expanding access to counsel for children.
Reestablish the Office of Access to Justice to facilitate legal counsel and education programs.
Access to legal counsel

scales of justice
Ensure detainees have expanded access to legal counsel, interpreters, and other members of their legal team. The President’s bill requires DHS to ensure access to counsel for people in all detention facilities and border facilities.
Expand visitation policies by increasing private meeting space and video and telephone communi­cations.
Expand legal orientation programs

Generic form that says visa application
Expand and improve EOIR’s legal orientation programs (LOP), which the previous adminis­tration attempted to defund.
Chart 7: End Inhumane Detention (Read AILA Recommendations Chapter 7)
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AILA Recommend­ations


Biden Administr­ation Actions
Reducing detention

a hand through fencing
Reduce the average daily population of detained persons and funding for detention by 75 percent. The President’s preliminary FY2022 budget did not address detention funding.
Establish a presumption of release and the use of least restrictive methods for individuals apprehended for immigration purposes. The adminis­tration released temporary enforcement guidance which covers custody decisions but was silent on the standards for release from detention.
Expand nationwide the use of community-based management and supervision programs as alternatives to detention. The adminis­tration’s preliminary FY2022 budget request includes funds for alternatives to detention and enhanced case management services but details are unclear.
End family detention and the separation of families. The administration created a task force to reunite families separated under “Zero Tolerance.” Family detention rates are at low levels. Few families are entering the United States per the CDC’s Title 42 expulsion order. The administration has not announced a policy ending family detention.
Review all detention cases to determine whether detention is necessary and justified. ICE created a Case Review process but has not affirmatively reviewed all pending detention cases.
Private prison contracting

Decorative image of wire caging over top of money
Terminate all existing contracts with private prisons and county jails and place a moratorium on future contracts or expansions. The President’s order for racial equity, which would terminate private prisons contracts, does not apply to private immigration detention.
Chart 8: Set a Vision for Immigration Enforcement that is Fair, Humane, and Effective (Read AILA Recommendations Chapter 8)
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AILA Recommend­ations


Biden Administr­ation Actions
Pause on deportations

Pause on deportations
Halt deportations until DHS reviews pending cases and establishes new enforcement priorities. On 1/22/21, DHS paused removals of certain noncitizens ordered deported for 100 days. But four days later, a federal court enjoined the government from executing the pause on deportation. That injunction was extended indefinitely.
Enforcement priorities

Enforcement priorities
Establish clear enforcement priorities that give weight to the favorable equities in each person’s case. On 1/20/21, DHS issued a memo on enforcement policies, and on 2/18/21, ICE issued a memo with interim guidance on enforcement priorities. ICE needs to give more clear direction to officers in the field and move away from unreliable and discredited approaches, such as defining public safety threat based on gang member identification.
Review of pending cases

Review of pending cases
Review pending cases to determine whether continued enforcement action is justified. AILA members report that some offices are affirmatively reviewing cases, but this does not appear to be a nationwide effort or mandate. ICE did create a system to receive inquiries on cases.
Prosecutorial discretion

Prosecutorial discretion
Implement a robust procedure for the exercise of prosecutorial discretion. DHS and ICE issued memos on enforcement priorities (See above). AILA members report inconsistent implement­ation of the memos and the outlined priorities.
Preventing the spread of COVID-19 in enforcement

Preventing the spread of COVID-19 in enforcement
Review detention, transfer, and deportation practices to prevent the spread of COVID-19. None, but President Biden issued an Executive Order that directs government officials to assess a CDC order requiring a negative COVID-19 test from airline passengers traveling to the United States.
287(g), detainers, and other collaborations with local police

287(g), detainers, and other collaborations with local police
Halt ICE and CBP collaborations with local police that pressure local law enforcement to violate the law and the Constitution, and compromise public safety.  
Body-worn cameras

Body-worn cameras
Set requirements that are consistent with law enforcement standards that protect the privacy of the public and officers.  

Chart 9: CBP and Port of Entry Processing (Read AILA Recommendations Chapter 9)
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No administrative action taken or implemented
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AILA Recommend­ations


Biden Administr­ation Actions
Consistency and transparency in adjudications

Consistency and transparency in adjudications
Promote uniformity in adjudications at all ports of entry by publishing non-classified Adjudication Guidance Musters on its website.  
Implement rigorous oversight and “guardrails” to ensure the work of the National Vetting Center and the use of biometrics is consistent with CBP’s mission. Publish all policy changes. CBP reopened the comment period for the proposed rule revising DHS’s comp­rehensive biometric entry and exit system comment for 30 days.
Uniform redress methods

Uniform redress methods
Create a clear and centralized national system where travelers can request I-94 corrections.  
L non­immigrant petition adjudication

L non­immigrant petition adjudication
Reestablish the practice of adjudicating reentry applications for L status at the northern border.  
Infra­structure Modern­ization

Infrastructure Modernization
Properly resource CBP to maintain sufficient well-trained staff and provide more lanes at ports and increased hours of operation. The president’s budget includes a request for funding to modernize land ports of entry and the U.S. Citizenship Act contains provisions to expedite trade and travel at ports of entry.

Chart 10: Protect Undocumented People and Others with Deep Ties to America (Read AILA Recommendations Chapter 10)
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No administrative action taken or implemented
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AILA Recommend­ations


Biden Administr­ation Actions
Deferred Action for Childhood Arrivals

Deferred Action for Childhood Arrivals
Reinstate DACA and make it fairer and more accessible. President Biden committed to defending DACA and DHS announced that it will pursue regulations to fortify DACA. But it has not made any changes to the program. The president’s proposed bill would legalize DACA recipients and others.
Temporary Protected Status and Deferred Enforced Departure

Temporary Protected Status and Deferred Enforced Departure
Designate or renew TPS and DED designations for the following countries: El Salvador, Haiti, Honduras, Nepal, Nicaragua, Sudan, Sierra Leone, Guinea, Syria, Yemen, South Sudan, Somalia, Venezuela, the Bahamas, Guatemala, and Lebanon. President Biden announced DED for Venezuela and renewed it for Liberia. The administration announced, extended, redesignated, or renewed TPS for Burma, Syria, and Venezuela.
Humanit­arian parole and deferred action

Humanitarian parole and deferred action
Apply deferred action and humanitarian parole to protect military families, people with severe medical needs, victims of serious crime waiting for U visas, and others. President Biden ordered a task force to explore granting humanitarian parole or other immigration benefits to those affected by the Zero Tolerance and family separation policies.

Chart 11: Employment-Based and Family-Based Immigration (Read AILA Recommendations Chapter 11)
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No administrative action taken or implemented
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AILA Recommend­ations


Biden Administr­ation Actions
Work author­ization and verification

Work authorization and verification
Ensure faster processing of work authorization. DHS should modernize and simplify the employment verification process. USCIS extended flexibilities to applicants filing Form 1-765 for certain foreign students affected by delayed receipt notices and permitted F-1 students to apply for work authorization electronically.

ICE also extended flexibility in processing Forms I-9 to waive physical inspection requirements of documents for remote workers, currently through May 31, 2021.
Relief for individuals in the immigrant visa backlogs

Relief for individuals in the immigrant visa backlogs
Revise regulations to allow for earlier filing of adjustment of status applications and to protect children from aging out of immigrant visa eligibility. No administrative action, but the U.S. Citizenship Act addresses family and employment-based visa backlogs, per country visa limits, and the aging out of H-4 children.
Visa recapture

Visa recapture
Recapture unused visas through administrative means. No administrative action, but the U.S. Citizenship Act addresses visa recapture.
Immigrant visa numerical limitations

Immigrant visa numerical limitations
Exempt derivates from numerical limits through administrative means. No administrative action, but the U.S. Citizenship Act exempts spouses and children from numerical limits in family, employment, and diversity visa categories.
Equitable wages for U.S. and foreign workers

Equitable wages for U.S. and foreign workers
Ensure the prevailing wage system reflects real-world norms by retaining the 2009 prevailing wage guidance. DOL delayed the effective date of a final rule significantly changing prevailing wage levels and seeks to further delay it until November 14, 2022. DOL has sought information from the public on how the system should be revised.
Innovation and job growth

Innovation and job growth
Expand the International Entrepreneur rule, admit L-1A managers and executives opening a new office for an initial period of two years, and expand use of the National Interest Waiver for entrepreneurs who will bolster the U.S. economy.  
H-1B program

H-1B program
Ensure that H-1B adjudications are consistent with statute and regulations and halt or rescind H-1B regulations published in the fall of 2020. The adminis­tration has rescinded the Buy American Hire American Executive Order and delayed the effective date of the DOL Prevailing Wage Rule and the DHS Wage Selection Rule to further review the policies in the regulations. DHS did not finalize the H-1B Strengthening Regulation and rescinded the H-1B computer programmer memo.
H-2B program

H-2B program
Ensure availability of visas and consistency in H-2B adjudications. DHS announced a supplemental increase of 22,000 additional H-2B visas for FY2021, with 6,000 visas set aside for nationals of Guatemala, Honduras, and El Salvador.
EB-5 program

EB-5 program
Ensure that EB-5 policies are revised to allow flexibility to accommodate fluctuations in business operations and the economy, including elimination of the redeployment requirement.  

Chart 12: Ensure the State Department (DOS) Is Properly Resourced to Provide Fair and Efficient Consular Processing (Read AILA Recommendations Chapter 12)
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No administrative action taken or implemented
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AILA Recommend­ations


Biden Administr­ation Actions
Consular affairs

Consular affairs
Elevate the position to be co-equal with other Deputy Assistant Secretary positions in the State Department.  
Visa processing

Visa processing
To address pandemic-related backlogs, DOS should automatically extend the validity of expiring visas, permit visa revalidation from the United States, and protect LPRs from falling out of status because of travel restrictions. DOS has temporarily expanded interview waiver eligibility for certain non­immigrants whose visas expired within 48 months and extended the validity of visa fees until September 30, 2022, but has not implemented other streamlining recommend­ations.
Reinstate authority for consular officers to waive interviews for low-risk non­immigrants to ensure efficiency. DOS temporarily expanded interview waiver eligibility for non­immigrants whose visas expired within 48 months. DOS is also allowing certain students subject to regional COVID-19 bans with valid visas to travel to the United States without seeking an exemption.
Establish policy for consular officers to articulate the reasons for visa denials.  

Cite as AILA Doc. No. 21041902.