Biden Should Use His Authority to Protect Vulnerable Immigrants Before He Leaves Office

President-elect Donald Trump vowed to deport millions of immigrants in his successful bid for a second term at the White House. This week, we gained a clearer picture about how he aims to fulfill this promise. Tom Homan, former acting chief for Immigration and Customs Enforcement (ICE), will oversee border policy and work to fulfill Trump’s mass deportation promises. Homan, the originator of Trump’s “zero tolerance” family separation policy, supports targeting all undocumented immigrants for deportation. And Stephen Miller, who was a key architect of the travel bans imposed on noncitizens from several majority-Muslim countries, among many other restrictive immigration measures, is rumored to be deputy chief of staff for policy.

While the federal government currently lacks the resources to fulfill Trump’s pledge of mass deportations in the first months of his presidency, ICE can and will act quickly to target immigrants for arrests.  However, before that begins, President Biden has 68 days in office to take decisive action to protect people at risk under Trump’s indiscriminate immigration enforcement plans.

Protect DACA Recipients and Noncitizen Workers

As the U.S. continues to face chronic labor shortages due to the pandemic, an aging workforce, and low fertility rates, economists have pointed out that immigrants have been key in filling these gaps. The Department of Homeland Security has made positive strides in decreasing work permit processing times—despite facing immense backlogs accumulated during Trump’s first term and the pandemic—to ensure migrants can get to work. However, we know that many of these individuals, including DACA recipients, parolees, and other beneficiaries of deferred action are likely to be priority targets for the incoming administration.

According to USCIS, as of June 2024, nearly 535,000 individuals depend on the DACA program for protection and the ability to work lawfully in the U.S. All have been in the United States since at least June 2007, and many have been here for much longer. About 40,000 of them have a renewal request pending, which once granted would provide them with another two years of protection. Many more requests are expected before the start of the Trump presidency, as recipients will likely try to extend their protections, and work permits, as far into the future as possible.

Similarly, as of September 2024, 1.2 million work permit applications, across a wide variety of categories, were pending at USCIS. 546,500 of these applications were filed more than six months ago. Should the Trump administration reimpose its “invisible wall” policies which slowed down most USCIS processing in his first term, these individuals face the possibility of having their authorization expire or their work permit requests get lost in the backlog, which will leave them and their employers at risk of facing lapses in employment. Biden can direct DHS to detail additional adjudicative capacity to prioritize the processing of these cases to clear as much of the backlog as possible before Trump takes office.

In addition, in April, USCIS issued a temporary rule to automatically extend noncitizens’ work authorization if they properly filed a renewal request. This was the second time USCIS issued this rule due to the agency’s ongoing processing backlogs and its attempts to limit negative impacts on immigrant families and businesses. The Biden administration requested public comments as to whether the rule should be made permanent. Given the continuing work permit backlogs, and to keep as many people working as possible, Biden and USCIS should issue a permanent final rule on automatic extensions of work permits immediately.

Extend, Redesignate, and Expand Temporary Protected Status (TPS) Protections

The incoming Trump administration will likely try to terminate certain TPS designations. TPS has provided temporary protection from deportation to more than 863,000 noncitizens from countries that are unsafe to return to due to war, natural disasters, and political instability. Within the first six months of Trump’s second term, 10 TPS designations (covering over 650,000 beneficiaries) are set to expire, including designations from many of the countries the Trump administration tried to terminate before. These 10 countries are El Salvador (March 2025), Sudan, Ukraine, and Venezuela (April 2025), Afghanistan and South Sudan (May 2025), Cameroon and Nepal (June 2025), and Honduras and Nicaragua (July 2025).

During Trump’s first two years in office, DHS tried to terminate TPS for Haiti, Nepal, El Salvador, Honduras, Nicaragua, and Sudan—which only survived due to litigation that was eventually settled by the Biden administration. There is no guarantee of litigation successfully holding off a second Trump effort to terminate these designations.

The Biden administration has the authority to extend and redesignate TPS for these countries and delay their expiration dates until mid-2026. Similarly, Biden can designate TPS for countries not currently covered by TPS that are unsafe, including the Democratic Republic of the Congo and Mauritania. In October, DHS also announced a TPS designation for Lebanon but it has not published a notice so that USCIS can begin accepting applications.

Protect Temporary Worker Visas and Expand Domestic Renewal Program

Trump is also calling for dramatic limits to benefits processing. Unfortunately, there are several rules and programs that have not been finalized by the Biden administration that can support temporary workers, international students, and other nonimmigrant visa holders. For example, the H-1B modernization rule, which aims to provide clarity and predictability in the processing of visas for high-skilled workers, has not yet been finalized. This rule also clarifies when applicants for these visas may be employed by organizations who are not subject to the general H-1B visa cap. This change supports a previous policy announced earlier this year that streamlines the nonimmigrant visa process for undocumented and DACA-mented college graduates with job offers.

Similarly, the Department of State (DOS) implemented a limited pilot program earlier this year to allow foreign H-1B visa holders to renew their visas within the United States. Biden should push DOS to make this program permanent and to expand the visa categories included in the domestic visa renewal program.

Prevent Harm to Immigrants in Detention Who Are Not Priorities for Removal

Unlike the Biden administration, the Trump administration has threatened to prioritize arrests and detention of noncitizens in the interior of the U.S. simply because they are undocumented, including those who have years of residence in their communities and pose no public safety threat or have any criminal record.

To protect these people from Trump’s aggressive enforcement agenda, DHS should release people currently detained who pose no public safety risk and who have sponsors who can support them upon release. This would allow them to navigate their immigration proceedings from their own communities, not from inside a detention center. This should include people eligible for parole and TPS and those who have serious health conditions.. DHS can also move to dismiss cases of people in removal proceedings who are not enforcement priorities.

Rescind Trump-Era Rules that Remain in Place

While some Trump-era immigration regulations were blocked in court or paused when President Biden took office, some remain on the books. Two of the remaining rules create insurmountable hurdles to access protections for asylum seekers. The “Procedures for Asylum and Bars to Asylum Eligibility” rule imposed multiple and often overlapping bars to asylum and narrowed the concept of asylum so much so that even a person imprisoned in Afghanistan on account of advocacy for women’s rights could be denied, as could any person who made the unfortunate mistake to have an international layover before arriving in the United States.

The “Security Bars and Processing” regulation would have allowed DHS and the Department of Justice to ban asylum, withholding of removal, and protection under the Convention Against Torture to any person entering the United States from a country in which “a communicable disease” was present. It would permit any future administration to effectively ban all humanitarian protections to all people who seek asylum from Mexico, regardless of whether they even have a communicable disease, and even return them to situations of torture in violation of international law. A second Trump administration could put this rule back into effect almost immediately. The Biden administration must act to fully rescind it.

While pundits continue to search for the reasons why so many voters shifted right this election cycle, it is clear that candidates scapegoated immigrants for some of society’s most intransigent problems, including housing costs, crime rates, and job opportunities. As the immigrant community awaits the start of four more years of draconian and enforcement-heavy immigration policies, Biden has a small window of time to delay these changes and protect immigrants as much as he can.

FILED UNDER: Biden Administration, H-1B, Immigration and Customs Enforcement, Temporary Protected Status, Trump administration, USCIS