Biden-Harris Offers A Chance For An Immigration Reset, Part 4

Published date10 February 2021
Subject MatterImmigration, General Immigration, Work Visas
Law FirmHarris Bricken
AuthorMr Akshat Divatia

This is part 4 of a series of blog posts on the likely implications of a Biden Presidency on U.S. immigration policy.

Last week, President Biden signed three executive orders on immigration. The first aims to reunite migrant parents who were separated from their children at the border. The second seeks to grasp the root causes of migration at the southern border from Central American nations. Last, but certainly not least for our purposes, the third executive order requires government agencies "to conduct a top-to-bottom review of recent regulations, policies, and guidance that have set up barriers to or our legal immigration system."

As I have advocated in my recent posts, intentional and systematic erosion of the U.S.'s legal immigration system during the Trump administration requires a new tone at the top, a return to its original mission, and targeted efforts to make agencies more efficient in order to yield consistent adjudications and increase American competitiveness.

The Department of Homeland Security and its partner agencies, the Department of State and Department of Labor, jointly regulate various aspects of U.S. immigration laws. By ordering a thorough review of the regulations, policies, and guidance that have created a barrier to legal immigration, President Biden recognizes the devastating impact that such administrative tools have wreaked over the last four years. The effect of these barriers is well-documented, and more narratives are being identified and confirmed with each passing day.

In this post, I explore some of the more glaring inconsistencies that presently exist in the adjudication of U.S. immigration laws, and suggest actions the government can take in order to yield outcomes that support both immigration policy and the country's broader economic goals.

The Burden of Establishing Eligibility in Immigration Matters

When a company petitions for a non-citizen worker, or a U.S. citizen petitions for his or her foreign-born spouse, or a non-citizen applies for employment authorization in order to obtain post-graduate practical training, they are all seeking immigration benefits. Under U.S. immigration law, petitioners and applicants bear the burden of proof, meaning that they must provide evidence to show that they are eligible for the immigration benefits they seek. Unlike in criminal law, in which the government bears the burden to prove a defendant's culpability, in immigration matters, the burden of proof to establish eligibility falls squarely on petitioners and applicants.

Just how much initial evidence petitioners and applicants need to establish their eligibility depends on the standard of proof. In most administrative immigration...

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