How will US immigration policy look under Biden or a second term of Trump?

If Biden wins

Joe Biden has gone on record to say his initial focus for immigration would be to undo much of Trump’s biggest, flagship changes, with a view to taking immigration policy back to the Obama-era.

Most obviously, this would mean ceasing work on building the wall along the border with Mexico, and removing the travel ban, DACA and family separation provisions.

Biden has stated that immigration is vital to the American economy and the country’s cultural foundation. He has pledged to commit “political capital” to deliver immigration reform. His plans include improving the system for employment-based permanent immigration to the US and the path to citizenship for millions of undocumented immigrants and DACA recipients.

However, his ability to deliver reform will be determined by the extent of Senate control secured in the election.

We do not expect the same pace of change as under Trump, although some issues will be pressing from the outset. The COVID-19 travel ban for example is due to expire on December 31, 2020, unless continued by the President.

Biden’s Administration may also find the reversal process challenging to effectuate. US immigration agencies have seen their authority and discretionary powers swell under Trump and his mandate to restrict migration. Rolling back on this position is unlikely to be plain sailing.

If Trump is re-elected

Immigration was an election winner for Trump in 2016. Four years on, and his immigration policy remains divisive. But despite his reputation for chaos and contempt for following protocol, he has succeeded in achieving his aim of reducing net migration to the US through wide-ranging reform. Between 2016 and 2019, annual net immigration fell in the US by 50% to approximately 600,000 people per year, the lowest level since the 1980s.

This is the result of over 400 executive actions, both permanent and temporary, targeting all channels of immigration: employment, family and humanitarian-based migration.

The Trump Administration has been adept at finding alternative paths to lower migration numbers; increasing processing times, barring immigrant visas to nationals of certain countries and bypassing advance notice and public consultation when making rule changes. And in response to COVID-19, Trump stopped visa processing and banned travel into the country with only limited exceptions, in the name of protecting US jobs.

Should Trump be re-elected, this trajectory and focus on restricting immigration will no doubt continue, potentially emboldened, but is not likely to go unchallenged.

The Trump Administration and US immigration authorities have faced a number of lawsuits in response to new and reformed rules and regulations. More restrictions will almost certainly mean more legal challenges.

We may well even see Trump adopt a more measured approach through Congress, in the pursuit of merit-based immigration reform.

Finally, border security in particular was a headline campaign promise from 2016. The wall along the Mexican border has yet to be finished, and remains subject to funding issues and legal challenge, since part of the border crosses private land. If Trump retains the Presidency, he will be dogged in his efforts to realise his promise and vision of a completed wall.

US immigration advice

Whoever succeeds and however they direct policy and regulations, the team at NNU remain committed to supporting individuals and companies seeking opportunities in the US through our highly specialist immigration expertise. For advice and guidance on your options to travel or relocate to the US, contact our US immigration attorneys.

This article does not constitute direct legal advice and is for informational purposes only.

Last updated: October 31, 2020