Despite travel ban repeal, Trump orders still keep immigrants out

Advocates are calling for Biden to repeal green card and work visa restrictions keeping foreigners abroad — and families separated

Protesters greet international travelers at Dulles International Airport in Virginia in 2017 following Trump's executive order restricting travel from several Islamic countries.  (Bill Clark/CQ Roll Call file photo)
Protesters greet international travelers at Dulles International Airport in Virginia in 2017 following Trump's executive order restricting travel from several Islamic countries. (Bill Clark/CQ Roll Call file photo)
Posted January 28, 2021 at 1:56pm

President Joe Biden is expected to issue more executive orders next week to chip away at the prior administration's immigration agenda, this time with an eye toward undoing his predecessor's asylum restrictions and wealth test for immigrants.

Last week, he kicked off his presidency by signing a series immigration orders, including one repealing former President Donald Trump's travel ban against Muslim-majority nations. But some immigration advocates are calling on Biden to now rescind two more Trump proclamations that have kept would-be immigrants abroad — and families separated.

"You can't rip off a Band-Aid halfway. You've got to rip the entire Band-Aid off," said Jesse Bless, director of federal litigation at the American Immigration Lawyers Association and a former Justice Department official who now represents immigrants affected by those bans. 

The two lesser known proclamations, handed down by Trump last year, bar certain foreigners from moving to the U.S. on new green cards and work visas, with the purported aim to free up jobs for Americans who found themselves unemployed during the coronavirus pandemic. 

[Trump issues narrow order suspending immigration amid pandemic]

The proclamations are separate from the coronavirus-related travel restrictions — which Biden has extended and expanded — that require individuals from certain countries to quarantine 14 days elsewhere before arriving in the U.S. to slow the spread of the virus. 

Like the so-called Muslim ban, Biden could easily lift the additional visa bans unilaterally. But more than a week into his presidency, he has yet to announce such plans. The government even defended one of the proclamations in a Jan. 22 court hearing, two days after Biden took office, instead of requesting to postpone proceedings as it has in other federal court cases, including two challenging Trump's massive asylum overhaul.

Jeffrey Gorsky, a former State Department official during the Bush and Obama administrations, said he expects Biden to eventually revoke both bans, particularly the one targeting green cards, which has largely affected Americans and permanent residents hoping to sponsor foreign relatives abroad, rather than foreign citizens moving to the U.S. for job offers. 

"I'm surprised they haven't done anything yet, but I'd really be shocked if they didn't rescind it," he said. 

Biden has already indicated an eagerness to undo the Trump administration's immigration policies. In addition to repealing the travel ban, he signed other orders his first day in office to strengthen protections for certain undocumented immigrants and halt border wall construction. 

Democratic lawmakers quickly met Biden's repeal of the Muslim ban with praise. Rep. Judy Chu, D-Calif., who chairs the Congressional Asian Pacific American Caucus, said that repealing the travel ban sends "an important message that our nation is turning the page on this hateful policy and recommitting ourselves to a more just and peaceful future."

Biden is expected to sign more executive actions on immigration tackling the prior administration's asylum and refugee limits and the "public charge" rule, which allows immigration officers to deny green cards to people deemed likely to need public assistance in the future.

'Mixed Feelings'

White House Press Secretary Jen Psaki said Thursday the president is expected to take additional immigration-related policy actions next week. She nor another White House spokesperson offered further details.

But former officials acknowledged that withdrawing a proclamation billed as a way to help U.S. workers, at a time when many Americans are out of work, could be tricky politically.

"The reason the Muslim ban got attention first is it's just a more visible issue," said Loren Locke, an immigration attorney and a former State Department consular officer. "These other proclamations were less controversial, even though they were hugely — and continue to be hugely — impactful."

Ending a proclamation aimed at suspending foreign citizens "who present risk to the U.S. labor market," as the proclamations are titled, could even prove divisive among the pro-labor factions of the Democratic party. 

"The Democrats have some mixed feelings about that. There's this debate over whether they're going to rescind that ban, or they may just let it expire," Gorsky said. 

Both orders will expire on March 31, which could allow the Biden administration to avoid taking a public position on them for now. 

Letting the labor market proclamations run their course may prove the most politically expedient, former officials said. 

However, leaving the proclamations in place could also signal support for the economic premise that provided the backbone for many of the Trump administration's immigration restrictions that made it more difficult and expensive for employers to hire foreign citizens: immigrants steal American jobs.

Biden has explicitly disavowed that idea. In his campaign platform, he said that Trump's immigration policies were "bad for our economy" and stressed that "working-age immigrants keep our economy growing, our communities thriving, and country moving forward."

Waiting to let the bans expire in March could also leave thousands of foreigners who snagged a green card through the diversity visa lottery — which allocates up to 55,000 green cards annually for individuals from countries with low rates of immigration to the U.S. — in the dust. 

In litigation challenging the labor market proclamations, a D.C. federal judge had ordered the State Department to process diversity visa requests despite the ban. But with the proclamation still in place, those visa holders can't actually enter the U.S. yet, and many of their visas are set to expire in the coming months, according to their lawyers. 

If they don't enter the country before their visa expires, they lose their chance to relocate to the U.S. for good. 

"They don't know if their lives are going to change forever or if they're going to be in a country that they've sworn off," Bless said.

Aaron Hall, a Colorado-based immigration lawyer who represented immigrants affected by Trump's bans in the Jan. 22 hearing, said he found the government lawyers' continued defense of that rationale disappointing. 

"The basis for the ban is that the immigrants are harmful to the economy. So if the Biden administration doesn't believe that's true, then they should rescind those proclamations," said Hall. 

"Keeping certain categories [of immigrants] out based on an alleged harm to the economy is not consistent with what we thought the Biden administration would stand for," he continued.