By Jenna Tyrpak, J.D. Class of 2021
On the first day of Biden’s presidency, he announced the U.S. Citizenship Act of 2021,1 demonstrating his Administration’s hope for comprehensive immigration reform. Biden’s proposal consists of several reforms that could affect the wait times for various forms of humanitarian immigration relief sought by many of the Clinic’s clients. The legislation provides remedies that could affect wait times for existing forms of relief and proposes a potential pathway to citizenship.
Reforms to Existing Forms of Humanitarian Relief
First, Biden’s proposal increases the capacity of the immigration court system. Currently, immigration courts face a backlog of over one million cases—the largest number of cases ever pending before the courts.2 As a result, that means individuals placed in removal proceedings, including those seeking asylum, can expect to wait up to four years before their individual hearing is scheduled.3 Under Biden’s plan, the Attorney General would be instructed to appoint an additional 55 immigration judges annually for the next 4 years.4 Additionally, the legislation directs the Attorney General to add at least 23 staff attorneys to the Board of Immigration Appeals each year.5 The expansion of immigration court staff would be accompanied by more technological resources necessary for processing cases.6
Second, more U Visa applications may be approved each year. U Visas are available to survivors of certain crimes in the United States that cooperate with law enforcement in reporting, investigating, and prosecuting the crime.7 In practice, the Clinic assists U visa applicants who are survivors of domestic violence, sexual assault, and other serious crimes. Currently, only 10,000 U visas are available each year. Biden’s plan would increase the number of available U visas to 30,000 annually.8 With the U visa backlog totaling over 100,000 and growing,9 this reform could have a serious impact on reducing wait times. U visas are a particularly valuable form of humanitarian relief, as they offer a pathway to a green card and eventually citizenship. These shorter wait times would provide faster relief to survivors of serious crimes who are also facing deportation.
Third, the Biden Administration proposed a reform to the employment authorization process for U visa, T visa, and asylum petitioners. Similar to the U visa, the T visa is available to survivors of human trafficking.10 Under the current system, asylum petitioners can request work authorization while their applications are pending; however, U visa and T visa applicants must wait until their petitions are approved before becoming eligible for work authorization. Wait times for just work authorization can be long. The U.S. Citizenship and Immigration Services reports wait times in some offices of up to 11.5 months for just work authorization approval.11 Under Biden’s proposal, the Department of Homeland Security would be required to issue employment authorization within 180 days of the U visa, T visa, and asylum applications being filed, unless the petitions are approved sooner.12 Although this reform does not affect the wait times for the desired applications, it could be significant in alleviating some of hardship caused by the backlogs—like having to wait for work authorization. For many of the Clinic’s clients, who are survivors of violence both in and outside of the United States, work authorization would allow them the freedom to financially support themselves and their families.
A New Category: Lawful Prospective Immigrant Status
Moreover, Biden’s plan provides a new form of temporary status that offers a path to citizenship for undocumented immigrants who came to the United States before or on January 1st, 2021: the Lawful Prospective Immigrant Status (LPI).13 Qualifying LPI applicants would be initially granted temporary status for 6 years, with the opportunity to extend for another 6 years. LPI status would provide work authorization and the opportunity to travel outside of the United States for short periods of time.14 After 5 years of LPI status, applicants may petition to adjust their status to lawful permanent residency.15 To qualify for LPI status, the applicant must pass a series of criminal and national security background checks.16
U visa, T visa, asylum petitions, and other existing forms of humanitarian relief can be difficult to secure, as each comes with a list of very specific and ever changing qualifications.17 For those that qualify, the wait times for approval can take several years, depending on the application. LPI status could help alleviate some of the backlogs present throughout the United States immigration system by creating a new avenue of relief with different qualifications.
What’s Next for Biden’s Immigration Proposal?
Only time will tell if Biden’s reforms will come to light. Democrats just recently introduced the legislation in the House of Representatives, and some critics argue Biden’s plan targets far too much at once.18 Still, the U.S. Citizenship Act of 2021 offers a welcome conversation on practical ways to mitigate the burdens of a very backlogged immigration system.
1. Fact Sheet: President Biden Sends Immigration Bill to Congress as Part of His Commitment to Modernize our Immigration System, the White House, https://www.whitehouse.gov/briefing-room/statements-releases/2021/01/20/fact-sheet-president-biden-sends-immigration-bill-to-congress-as-part-of-his-commitment-to-modernize-our-immigration-system.
2. FY 2021 Begins with Largest Immigration Court Backlog on Record, Syracuse Univ., https://trac.syr.edu/whatsnew/email.201124.html.
3. Crushing Immigration Judge Caseloads and Lengthening Hearing Wait Times, Syracuse Univ., https://trac.syr.edu/immigration/reports/579/#:~:text=Projected%20average%20wait%20times%20have,out%20as%20December%2018%2C%202023.
4. U.S. Citizenship Act of 2021,H.R. 1177, 117th. Cong.,§ 4102(a) (2021).
5. Id. § 4102(d).
6. Id. § 4102(c).
7. Victims of Criminal Activity: U Nonimmigrant Status, USCIS https://www.uscis.gov/humanitarian/victims-of-human-trafficking-and-other-crimes/victims-of-criminal-activity-u-nonimmigrant-status.
8. H.R. 1177 § 4302.
9. U Visa Filing Trends, USCIS (Apr. 2020) at 3, https://www.uscis.gov/sites/default/files/document/reports/Mini_U_Report-Filing_Trends_508.pdf.
10. Victims of Human Trafficking: T Nonimmigrant, USCIS https://www.uscis.gov/humanitarian/victims-of-human-trafficking-and-other-crimes/victims-of-human-trafficking-t-nonimmigrant-status.
11. Check Case Processing Times, USCIS, https://egov.uscis.gov/processing-times/.
12. H.R. 1177§§ 4304(a)(8), 4304(b)(8), 4303(a)(2)(B).
13. Id. § 1101.
14. Id. §§ 1101(e)(D)(3)-(4).
15. Id. § 245C(a).
16. Id. § 1101(a)(1).
17. See The Problem With the ‘Victim Visa’, ABC News, https://abcnews.go.com/ABC_Univision/visas-problem-victim-visa/story?id=18357347 (Jan. 30, 2013); ‘I Thought I Was Going to Die.’ How Donald Trump’s Immigration Agenda Set Back the Clock on Fighting Human Trafficking, Time, https://time.com/5905437/human-trafficking-trump-administration/ (Oct. 30, 2020); Biden Administration Is Making Quick Progress on Asylum, but a Long, Complicated Road Lies Ahead, Migration Policy Inst., https://www.migrationpolicy.org/news/biden-administration-asylum-road-ahead (Feb. 2021).
18. Democratic Lawmakers Introduce Biden’s Immigration Overhaul in House, N.Y. Times (Feb. 18, 2021), https://www.nytimes.com/2021/02/18/us/politics/house-democrats-biden-immigration.html?action=click&module=RelatedLinks&pgtype=Article.
William & Mary Law School Immigration Clinic Blog 