The Volokh Conspiracy

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Biden Lets Trump Work Visa Ban Expire

The decision opens the door to numerous immigrant workers, and moots out ongoing litigation against the Trump policy.


Yesterday, President Biden allowed Donald Trump's ban on a wide range of temporary work visas for foreign workers to expire. He thereby ended a badly flawed policy enacted by the previous administration on the pretext that it was needed to benefit the US economy and curb the spread of Covid. In February, Biden revoked Trump's accompanying policy barring nearly all entry by immigrants seeking permanent residency in the United States.

Between these two moves, Biden has ended a period when the US was more closed off to immigration than at any previous point in its history. In truth, Biden should have ended the work visa ban earlier, as he did with the immigration ban. As he himself pointed out during the presidential campaign, the visa bans did nothing to protect the US, and "also harms industries in the United States that utilize talent from around the world."

But late is still a lot better than never. And I have to admit that Biden has ended both policies faster than I initially thought he would. I outlined the legal and policy flaws in the migration and visa bans in greater detail in a June 2020 article in The Atlantic.

The expiration of the work visa ban probably moots out ongoing litigation challenging its legality. In October, a federal district court ruled against the Trump administration on this issue, in part because the sweeping power claimed by Trump (and later continued for a time by Biden) violates nondelegation principles. The court issued a preliminary injunction barring enforcement of the ban against the many employers who are members of the the US Chamber of Commerce, the National Association of Manufacturers, and other industry groups who were plaintiffs in the case.

The nondelegation issue raised in that case is an extremely important one, with applications to a wide range of other immigration and trade restrictions. See my discussion here, here, here, and here.

While Biden deserves credit for revoking the work visa restrictions and immigration bans, and for such measures as ending Trump's "travel bans" against residents of numerous Muslim-majority nations, he has not yet ended all of the previous administration's dubious immigration policies. Among other things, he is to blame for perpetuating its Title 42 expulsions of most migrants crossing the Mexican border, a policy which is to blame for much of the current crisis involving unaccompanied minors apprehended at the border (as the continued expulsion of family groups incentivizes families to send children to cross on their own).

Like the visa bans, the Title 42 expulsions are of dubious legality  and do not actually benefit public health. Indeed, they were enacted by the Trump White House  over the opposition of CDC scientists, who believed them to be unnecessary.

The Biden administration has taken a number of valuable steps to undo the harmful immigration policies of its predecessor. But there is plenty of room for further progress.