On January 20, 2021, in one of his first acts in office, President Joe Biden sent an ambitious immigration reform bill (the “US Citizenship Act of 2021”) to Congress. Although the entire text of the bill has not yet been made public, the Biden administration has released a short summary of the bill’s goals and major provisions.
Does This Immigration Bill Affect My Current Immigration Case?
Right now, no. The bill is not a law yet; it still needs to be approved by both houses of Congress (the Senate and the House of Representatives) and signed by the president before it becomes a law. However, the bill may face opposition in Congress, where it could be changed or not passed at all.
What Are the Major Proposed Changes Under the Bill?
Although the complete text of the bill has not yet been made public, it appears that President Biden’s immigration reform bill includes the following major provisions:
1. New Pathway to US Citizenship for Those Without Lawful Immigration Status
The bill biggest change would be the creation of a new path for undocumented individuals to receive lawful immigration status in the US and eventually become US citizens. The bill provides that:
- Undocumented individuals in the US who pass criminal background check and pay taxes would be able to apply for green cards after 5 years and then apply for US citizenship after 3 years.
- Individuals with protection under DACA (“Dreamers”), TPS holders, and certain immigrant farmworkers would be immediately eligible for apply for green cards, and they could apply for US citizenship after 3 years.
- This path to US lawful immigration status would only be available to people who were physically present in the US on or before January 1, 2021.
- However, for family unity and other humanitarian purposes, the Secretary of the Department of Homeland Security (DHS) may waive the physical presence requirement for people who were removed from US on or after January 20, 2017 who were physically present in the US for at least three years prior to being removed from the US.
2. Changes to Family-based Immigration
The bill would make significant changes to family-based immigration by:
- Raising the annual per-country limits on family-based immigration to make more visas available.
- Treating spouses and unmarried children of green card holders (US lawful permanent residents or “LPRs”) as “immediate relatives,” a category that already includes spouses, unmarried children, and parents of U.S. citizens. This would exempt spouses and unmarried children of LPRs from the current numerical quotas (and waiting times for visas to become available) because there is no limit on immigrant visas for immediate relatives.
- Allowing beneficiaries of approved I-130 family visa petitions to join their families in the US temporarily while waiting for their visa priority dates to be current.
3. Elimination of the 3- and 10-year Unlawful Presence Bars
Under the current immigration law that has existed since 1996, the 3- and 10-year “bars” punish individuals who have entered the US illegally or overstayed their visas in the US, leave the US, and then try to return to the US.
When an individual has more than 180 days but less than 1 year of “unlawful presence” in the US leaves the US, they trigger the 3-year bar, meaning they must wait outside the US for 3 years in order to return with a visa, unless they apply for a hardship waiver and the waiver is approved. When an individual has 1 year or more of “unlawful presence” leaves the US, they trigger the 10-year bar, meaning they must wait outside the US for 10 years in order to return with a visa, unless they apply for a hardship waiver and the waiver is approved. The 3- and 10-year currently prevent many people from receiving lawful immigration status in the US, even if they have an approved immigrant visa petition, because they will not be able to re-enter the US once they depart the US to attend a visa interview at a US embassy or consulate. Eliminating the bars would allow people who originally entered the US illegally or overstayed their visas, but do not qualify for hardship waivers, to leave the US and return to the US as lawful immigrants without being forced to wait outside the US for an indefinite amount of time before they can be reunited with their families.
4. Changes to Employment-based Immigration
Among other changes to the US employment-based visa system, the bill would:
- Eliminate the per-country visa caps or quotes for employment-based immigrant visas.
- Make it easier for graduates of U.S. universities with advanced STEM degrees to remain in the US.
- Provide dependents of H-1B visa holders—H-4 spouses and possibly children—with US work authorization and prevent H-4 children from “aging out” of H-4 status when they reach the age of 21.
5. Elimination of the One-year Filing Deadline for Asylum
Under the current immigration law, an individual seeking asylum must apply for asylum within one year of entering the US, unless an exception applies; otherwise, they are barred from a grant of asylum. Eliminating the 1-year asylum filing requirement would remove a major barrier to relief for many individuals who would otherwise qualify for asylum if not for the one-year filing rule.
6. Increased Numbers of U-visas
The bill would increase the annual number of U-visas from 10,000 to 30,000. U-visas allow victims of certain crimes who have suffered mental or physical abuse and are helpful to the police or government investigators (and their qualifying family members) to apply for nonimmigrant visas and work authorization in the US, and eventually apply for green cards. However, the 10,000 annual limit on U-visas has led to a major backlog with some individuals having to wait for up to 10 years for their U-visa to be approved. Increasing the annual number of U-visas to 30,000 is intended to reduce this backlog and lengthy waiting time.
7. Changes to the Immigration Court System
Among other changes, the bill would seek to “restore fairness and balance to our immigrationsystem by providing judges and adjudicators with discretion to review cases and grant relief to deserving individuals.” This is significant because the ability of immigration judges to grant discretionary relief has been significantly limited since 1996.
8. Limitations on Future Travel and Visa Bans and Increase in Diversity Visas
The bill includes the NO BAN Act, which would prohibit discrimination based on religion and limit the president’s authority to issue future travel and visa bans. The bill also increases the number of annual Diversity Visas to 80,000 from 55,000.
9. Replacing the Word “Alien” with “Noncitizen” in the US Immigration Law
The bill’s replacement of the word “alien” to “noncitizen” in the United States’ immigration law is significant because it recognizes the important role of foreign-born individuals in shaping the United States as we know it today, and symbolically addresses the “othering” of foreign-born individuals throughout the history of the United States in areas ranging from legislation to popular culture.
In contrast, under the Trump administration, in 2018 USCIS edited its mission statement to remove the reference to the United States as a “nation of immigrants” and removed the word “customers” when referring to the individuals who file immigration applications and petitions with USCIS.
Please note that the above is only a summary of several major provisions in the Biden administration’s immigration reform bill, and it does not cover the entirety of the bill. Only time will tell if the Biden administration will succeed in passing this ambitious (or parts of it). Please check back for updates on this issue.
Written by Joseph Fungsang, an immigration attorney and partner-in-charge of the New York City office of Margaret W. Wong & Associates LLC. The above text is for informational purposes only and is not legal advice.