There is Hope
We have seen immense attack to the U.S. Immigration System by the current Administration over the last four years, and these attacks became more vigorous in the last 3-4 months. Although we can all agree that the U.S. immigration laws are overdue for reform, it is fortunate that the current administration was not able to change any existing laws and make it even harder for immigrants. The current administration was very aware that they would not get any support from Congress, so they attempted to use options not requiring any Congressional approval to make changes to existing processes.
I will address some of the changes made by this administration below and I will indicate which ones are still ongoing.
- Executive Orders/Presidential Action:
Executive actions, also called presidential actions, are actions that are taken by the President of the United States, usually through the following vehicles: Executive Orders; Presidential Proclamations; and Presidential Memoranda.
- June 22, 2020 Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak
On June 22, 2020, the President issued Proclamation 10052 titled Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak. Effective June 24, 2020, the proclamation suspends “entry into the United States of any alien seeking entry pursuant to any of the following nonimmigrant visas” until December 31, 2020, subject to section 3 of the proclamation:
- “an H-1B or H-2B visa, and any alien accompanying or following to join such alien;”
- “a J visa, to the extent the alien is participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program, and any alien accompanying or following to join such alien;”
- “an L visa, and any alien accompanying or following to join such alien”
It is very likely that President Trump will extend these Proclamations; requiring the new Administration to affirmatively rescind them.
- Travel Ban 4.0 – Proclamation 9983 of January 31, 2020 Improving Enhanced Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats.
Also known as “Travel Ban 4.0.” Placed visa and entry restrictions on travelers from six additional countries: Eritrea, Kyrgyzstan, Myanmar, Nigeria, Sudan, and Tanzania. The new ban (Travel Ban 4.0) became effective at 12:01 eastern standard time on February 21, 2020. Travel Ban 4.0 contains restrictions on immigrants but not on nonimmigrants, so Travel Ban 4.0 will not impact acquisition of nonimmigrant visas like F-1 student, J-1 exchange visitor, H-1B worker, etc., or of admission to the United States in those categories. Meanwhile, Travel Ban 3.0 continues in effect on certain citizens of Iran, Libya, North Korea, Syria, Venezuela, Yemen, and Somalia.
- Executive Order Limiting Birthright Citizenship. Various news agencies have reported that this order is expected, even though it is highly suspect to legal challenge.
I have only listed few of the several Executive orders. The next administration will be able to set side all the executives orders by just signing a new executive order.
- Regulatory Actions
It is likely that the current administration will seek to publish as many final regulations as possible before January 20th to make longer-lasting policy changes. This is because any rule that has been finalized cannot be rescinded unless it goes through rulemaking process, is set-aside by a court, or are rescinded by Congress by way of the Congressional Review Act. The ability to finalize regulations will be very dependent on what phase the specific action is in the regulatory drafting and review process and how high of a priority it is for the Administration.
- Regulations that are pending review at the Office of Information and Regulatory Affairs (OIRA) for publication as final rules.
This means that a rule has already been issued as a proposed rule, comments have been received, and a final rule has been drafted, or the rule is being issued as a straight final rule. These rules are the closest to being finalized and published.
- Joint DHS/DOJ Procedures for Asylum and Withholding Final Rule; Credible Fear and Reasonable Fear Interviews. 85 FR 36264, 6/15/20 (OIRA review completed on 11/24/20, awaiting publication of Final Rule)
DHS and DOJ published a final rule that finalizes, with minor changes, the interim final rule published on July 16, 2019, that barred from asylum eligibility individuals who transit through a third country without seeking protection. The rule is effective January 19, 2021
- DOJ/EOIR Proposed Rule on Procedures for Asylum and Withholding Rule; 85 FR 58692, 9/23/20; (Received by OIRA on 11/24)
I have only listed the proposed rule as they relate to Asylum. There are a few other rules that are pending at this stage.
- Interim Final Rules that have been set aside on procedural grounds by a court and comment periods have closed.
These are rules that were published as interim final rules with a comment period and either took effect or were to take effect but were subsequently set aside by a Court because the government failed to take the proper steps to issue the rule.
- DOL Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States, 85 FR 63872, 10/8/20 (Comments closed on 11/9/20, 2,340 comments received). Rule struck down on 12/1/20.
- Strengthening the H–1B Nonimmigrant Visa Classification Program, 85 FR 63918, 12/7/20 (Comments closed on 12/7/20, 2,467 comments received). Rule struck down on 12/1/20.
- Proposed regulations where the comment periods have closed and final rules are being drafted.
The ability to finalize these rules will be dependent on how many comments they have received. However, the administration may have things already in motion to finalize these rules, especially if they do not intend to make any policy changes based on comments.
- DHS/ICE Elimination of Duration of Status Rule; 85 FR 60526, 9/25/20; (Comment period closed on 10/26/20; 32,083 comments received).
- DOJ/EOIR Proposed Rule on Procedures for Asylum and Withholding Rule; 85 FR 58692, 9/23/20; (comments closed on 10/23; 2,039 comments received)
This administration has finalized a sweeping regulation that will effectively end asylum protection in the United States. The regulation, which was proposed in June, is set to go into effect on January 1, 2021—only nine days before President Trump leaves office. If implemented, it will mean that very few people fleeing persecution will be able to obtain refuge in the United States.
The regulation imposes radical new bars and obstacles in almost every aspect of asylum law and procedure. Some of the more devastating provisions include:
- Making it harder to pass the “credible fear” screening at the border.
- Letting immigration judges deny asylum without a hearing.
- Severely narrowing the definition of key terms like “political opinion,” “persecution,” and “particular social group.”
- Barring asylum for people who traveled through more than one country on their way to the U.S.
- Restricting the types of evidence that asylum seekers may present.
- Letting immigration judges label many more asylum applications as “frivolous”—which has serious negative consequences for people who seek other immigration protections.
- Restricting eligibility for protection based on a fear of torture.
Together, these provisions and many others amount to a radical end-run around Congress erasing asylum protections in the U.S.
I have listed only few of the many provisions proposed by this administration. There are few others that are pending at this stage.
- Proposed regulations that were published but the comment period remains open.
These rules will be even harder to finalize as all comments have not yet been received. The agency will need to review and respond to the comments, draft, and clear the final rule at agency and department level, as well as OIRA. To help slow down the finalization of rules, it is important for the public to submit as many unique comments as possible.
- DHS/USCIS H-1B Lottery Proposed Rule – 85 FR 69236, 11/2/20; (Comment period closes on 12/2/20).
- DHS/USCIS NPRM Elimination of Employment Authorization for individuals with Orders of Removal – 85 FR 74196, 11/19/20 (comment period closes on 12/21/20).
- DHS/CBP Proposed Rule Collection of Biometric Data from Aliens Upon Entry to and Departure from the United States – 85 FR 74162, 11/19/20 (comment period closes on 12/21/20).
- DOS Proposed Rule on Intercountry Adoptions, 85 FR 74492, 11/20/20 (comment period closes on 1/19/21).
- Proposed Regulations that are pending OIRA review. These regulations will be nearly impossible to finalize by January 20, 2021 given the number of steps remaining.
DACA temporarily protects certain people without immigration status from deportation and provides them with a work permit. The Trump administration’s previous effort to end the initiative altogether was rejected by the U.S. Supreme Court. DHS responded by attempting to severely limit participation in the initiative, which the court in New York rejected. A federal judge in New York has overturned this administration’s latest effort to limit the Deferred Action for Childhood Arrivals (DACA) initiative. The latest decision means that starting December 7, 2020, hundreds of thousands of people should be able to apply for DACA for the first time.
It is clear to most that the current administration declared an attack on immigration from the moment they took office a few years ago. This unsolicited war has had a deep impact on the immigrant community and it continues to terrorize many seeking legal status in the U.S. Unfortunately, this attack will most likely not stop until the end of this administration’s reign and it is very possible that we will see more changes over the next month. In response, the immigrant community will continue to adapt to these changes and fight for their right to be in this country.
The new administration is set to take office by the end of January and it is predicted that they will have a more meaningful and sympathetic approach to immigration laws. They might not be able to make every change right when they take office but they will be able to overturn many of the nonsensical policies in place and will most likely start the process to overturn prior regulatory actions. There is hope!