Year: 2021

As published in the Immigration Daily on March 24, 2021

As we notice that many readers would like to know about immigration developments in small bites rather than large articles, we will begin to write a series of shorter summaries of what we hope to be useful developments in the field:

1. Public charge – The law has now officially reverted to 1999 and the rules in place until the Trump Administration. The old guidelines as to what were considered means tested public charge benefits only included SSI, Temporary Assistance For Needy Families (TANF), state and local cash assistance programs providing benefits for income maintenance (often called “General Assistance” programs), and programs (including Medicaid) supporting persons institutionalized for long-term care, e.g. nursing homes or mental health institutions. The Trump administration added food stamp program participation (SNAP), Section 8 housing assistance under the housing choice voucher program, Section 8 project-based rental assistance, including moderate rehabilitation, public housing (under the Housing Act of 1937), and federally funded Medicaid (with certain exceptions). All of the Trump add-ons are now out. Readers should also remember that DHS has never considered as public charge benefits the receipt of emergency medical assistance, disaster relief, participation in the national school lunch programs, special supplemental nutrition program for women, infants, and children, the children’s health insurance program, subsidies for foster care and adoption, government-subsidized student and mortgage loans, energy assistance, food pantries and homeless shelters, and Head Start.

2. Public charge – Financial joint sponsors have much less to fear from intrusions or attempts by city, state or federal governments to intimidate them and to claw back monies that the entities have expended on means tested public benefits for persons being sponsored. Before the Trump administration, the issue of claw back had been largely settled on the side of joint sponsors as it was unpopular the few times that it was tried when claw back suits were filed. The Trump administration on the other hand made fierce attacks on family-based financial sponsorship. It first announced in a May 23, 2019 “Presidential Memorandum on Enforcing the Legal Responsibilities of Sponsors of Aliens,” that it would go after sponsors, and if a sponsor did not reimburse an agency upon request, the agency could then seek a court order for reimbursement. It next launched a new Systematic Alien Verification for Entitlements (SAVE) initiative in September 2020 encouraging all agencies administering federal means tested public benefits to use the new SAVE sponsorship initiative functionality to manage and report their sponsorship and agency reimbursement decisions. In the same month, the administration placed even more pressure on joint sponsors in a proposed rule, “Collection and Use of Biometrics by US Citizenship and Immigration Services,” that it could collect the biometrics of any sponsor associated with an immigration benefit or request including US citizens. Finally, it published a notice of proposed rulemaking, “Affidavit of Support on Behalf of Immigrants,” on October 2, 2020, to further intimidate potential joint sponsors by requiring them to submit three years tax returns, banking information, credit scores, credit reports, and information on their receipt of public benefits, and past failure to meet support obligations in other cases. The Biden administration issued Executive Order 14012, “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans,” on February 2, 2021, revoking the 2019 Trump presidential memorandum, and DHS withdrew the affidavit of support notice of proposed rulemaking on March 19, 2021. In its withdrawal, DHS stated that it was aiming to reduce barriers and alleviate burdens on American families who wished to sponsor individuals immigrating to the US within the legal immigration system.

3. Public charge – Cancellation of the Trump administration’s public charge rules means wholesale changes to the relevant immigration forms, and readers should not be caught short in using the pre-March 10, 2021, forms on or after April 19, 2021. The 3/10/21 edition of the forms must be used on that date barring an extension in the use of the older forms by DHS. Otherwise, usage of old forms brings the penalty of automatic rejection of applications and petitions. Those forms are I-485, I-485 supplements A & J for adjustment of status to permanent residence, I-864, I-864A, I-864W & EZ affidavits of support, I-129 CW and CWR relating to the Commonwealth of the Northern Mariana Islands and both I-539 & I-539A for change/extension of nonimmigrant status. Form I-129 petition for nonimmigrant worker, will also change, but the effective date was changed on March 25, 2021, from 4/19/21 to July 1, 2021.

4. Public charge – Forms I-944 Declaration of Self-Sufficiency for adjustment of status to permanent residence and DS-5540 Public Charge Questionnaire for immigrant visa processing are both canceled. The I-944 was the more important as use of the DS-5540 had been enjoined by the US District Court for the Southern District of New York on July 29, 2020. With their demise goes the need to provide evidence of health insurance or ability to obtain such upon immigrating along with the torturous putting together of asset items with expert appraisals of worth and documents of education including expert evaluations in some cases.

5. Public charge – Gone also are forms I-945 Public Charge Bond and I-356 Request for Cancellation of Public Charge Bond which USCIS could impose in questionable cases to require applicants to post bonds beginning at $8100 adjusted for inflation annually to ensure that they would not become public charges.

6. Public charge – Altogether, good riddance to the above rules, and financial sponsors should no longer be as afraid to guarantee the support of family-based immigrants.

7. Venezuelan/Burma (Myanmar) TPS – Temporary protected status will be given to all eligible nationals of Venezuela and Burma in the country since at least March 9, 2021 and March 11, 2021 respectively because of the present crises in their countries. Applicants for Venezuelan TPS have already begun to apply as the procedure was set out by a Federal Register notice on March 9, 2021, allowing applications to be submitted from that date until September 5, 2021, while the same cannot be said for Burmese as there has not yet been a corresponding FR notice for Burma. The Venezuelan notice defines eligible individuals as nationals of Venezuela or individuals having no nationality who last habitually resided in Venezuela. Both designations of TPS are for 18 months, with the one for Venezuelans through September 9, 2022. The rules for Burmese will likely be the same as those outlined for Venezuelans that applications for TPS and employment authorization can be filed concurrently. (Advance parole can also be requested, but the notice does not say it can be filed concurrently). Fees are variable dependent upon age and benefits sought. For those 14-65 years of age requesting employment authorization, the fee is $545. Most grounds of ineligibility can be waived, but not those relating to convictions for crimes involving moral turpitude, multiple criminal convictions for which the aggregate sentences to confinement were five years or more, convictions for drug offenses except as related to a single offense of simple possession of 30 g or less of marijuana, for those who engaged in genocide, participated in Nazi persecutions, or are national security threats, were convicted of any felony or two or more misdemeanors committed in the United States, or those that the Attorney General determines took part in persecuting others, where there are serious reasons for believing that the person committed a serious nonpolitical crime outside the United States, where the person is believed to be a member or participant in terrorist activity, or where the person was firmly resettled in another country prior to arriving in the United States.

8. Venezuelan/Burma (Myanmar) TPS – The Federal Register notice for Venezuela notes that those who already applied for Deferred Enforced Departure may also apply for TPS if eligible and that “USCIS encourages individuals who believe they are eligible for TPS to file for the benefit during the initial registration period announced in this Notice, even if they are also covered by DED, in case they cannot qualify for TPS late initial filing under 8 CFR 244.2 (f) (2) after DD has expired.”

9. Interpreters at USCIS affirmative asylum interviews – In light of the COVID-19 pandemic and other stated reasons, USCIS on March 22, 2021, extended a temporary final rule that affirmative asylum-seekers having interviews at asylum offices will not be required to bring their own interpreters, and that USCIS will use contract interpreters for the interviews. Previously the practice had been for applicants to bring interpreters and USCIS would have a contract interpreter only monitor the interpretation of questions and answers. Now USCIS will only allow for applicants’ interpreters to be used in situations where the applicant does not speak English or any of the 47 languages for which contract interpreters are available. The 47 languages are: Akan, Albanian, Amharic, Arabic, Armenian, Azerbaijani, Bengali, Burmese, Cantonese, Creole/Haitian Creole, Farsi Afghani/Dari, Farsi-Iranian, Foo Chow/Fuzhou, French, Georgian, Gujarati, Hindi, Hmong, Hungarian, Indonesian/Bahasa, Konjobal, Korean, Kurdish, Lingala, Mam, Mandarin, Nepali, Pashto/Pushtu, Portuguese, Punjabi, Quiche/K’iche, Romanian, Russian, Serbian, Sinhalese, Somali, Spanish, Swahili, Tagalog, Kamil, Tigrinya, Turkish, Twi, Ukrainian, Urdu, Uzbek, and Vietnamese.

As published in the Immigration Daily on February 22, 2021

The Biden Administration’s big immigration bill, “The US Citizenship Act”, sent to Congress on February 18, 2021, is expected to draw opposition and faces an uphill climb. In what form it will emerge from Congress if it does remains to be seen. This article will only discuss one part of the bill – the provisions for the undocumented including those with final orders of removal or deportation to apply for status as “Lawful Prospective Immigrants”.

Generally, applicants must be physically present in the US on January 1, 2021, and maintain continuous physical presence from that date until the application is approved although absences of less than 180 days during a calendar year are not to be considered violations of the residence requirement if the absences are brief, casual, and innocent, whether or not the absences are authorized by DHS. Ineligibility grounds are confined to criminal, security, human smuggling, ineligibility for citizenship, child abducting and unlawful voting bars. Deportation or removal orders are not a bar; neither is the two-year home residence requirement restriction for some J-1 visa holders.

Most criminal acts as well as human smuggling, ineligibility for citizenship, child abduction and unlawful voting are waivable.

On crimes, felonies can bar, but state laws classifying offenses as felonies for which an essential element is the individual’s immigration status are not applicable. Most felonies, except for aggravated felonies can be waived except that multiple barring crimes involving moral turpitude can only be waived if the noncitizen has not been convicted of any offense during the 10 year period prior to the application for lawful prospective immigration.

Misdemeanors can also bar, but it takes three or more, and not counted are simple possession of marijuana or marijuana related paraphernalia, any offense regarding marijuana or marijuana related paraphernalia no longer prosecutable in the state of conviction, any offense for which an essential element is the individual’s immigration status, any offense involving civil disobedience without violence, and any minor traffic ticket. A further limiting factor on misdemeanors is that there can be no multiple counting of misdemeanors occurring on the same date and arising from the same act, omission, or scheme of misconduct. Waivers can also be given for misdemeanors on a scale of waiving one if there were no offenses within five years of application, and waiving two if there were no offenses within 10 years of application.

Waiver criteria do not primarily depend upon having qualifying relatives in the country. Humanitarian purposes, family unity, or public interest are to govern waiver decisions. DHS is to consider all mitigating and aggravating factors including severity of the underlying circumstances, conduct, or violation; the length of the individual’s residence in the US; evidence of rehabilitation if applicable; and the extent to which the individual’s removal or denial of application would adversely affect the individual or the individual’s US citizen or lawful permanent resident family members.

Persons who are out of the country having been deported during the Trump Administration beginning on January 20, 2017, can be given a waiver of deportation or removal and the requirement to be physically present in the US on January 1, 2021, and apply for the program. The waiver decision would again be based on humanitarian purposes, to ensure family unity or if it would be in the public interest. Eligibility factors for such a waiver are that the individual was continuously physically present in the US for not fewer than three years immediately preceding the date on which he or she was removed or deported and that the applicant did not reenter the US unlawfully after January 1, 2021.

Deported or removed individuals who sneaked back into the country by January 1, 2021, appear to be eligible for the program.

Lawful permanent residents, persons admitted as refugees or granted asylum, or individuals who are in a period of authorized stay in a nonimmigrant status according to the records of DHS or the Department of State as of January 1, 2021, are ineligible for the program.

Applicants can apply with their family members in a single combined application, and there would be an accompanying petition to classify the dependent spouse or children of the principal applicant. The dependents can be in status. Other classes that can be in status and apply are those in nonimmigrant status solely by reason of §702 of the Consolidated Natural Resources Act of 2008, H-2A farmworkers, persons who have engaged in “essential critical infrastructure labor or services” during the Covid-19 response period, and those paroled into the Commonwealth of the Northern Mariana Islands or Guam who did not reside in the Commonwealth or Guam on November 28, 2009.

Persons who are prima facie eligible to apply will be given a reasonable opportunity along with limited protections if they make the application within a reasonable period of time in that they are not to be removed before DHS makes a decision denying relief; a final order of removal has been issued; and the DHS decision is upheld by a court or the time for appealing for judicial review has expired. An exception to waiting until the end of judicial review for removal is if the order of removal is based on criminal or national security grounds.

To apply, required documentary evidence of ID includes not only traditional past legalization IDs like passport, national identity document, birth certificate/identity card with name and photograph, school ID card with name and photograph and school records, state ID card, Department of Defense uniformed services ID card, any immigration or other document issued by the US government with the name and photograph – but also any other evidence that DHS determines to be credible.

Documents establishing continuous physical presence include any other evidence determined to be credible, sworn affidavits, official records from religious entities confirming participation in a religious ceremony, and the more typical required evidence such as passport entries with US admission stamps, DOJ or DHS documents noting the person’s date of entry, schooling records, employment records, uniform services records, birth certificate for child born in the US, hospital or medical records, auto license receipts or registration, deeds, mortgages, or rental agreement contracts, rent receipts or utility bills, tax receipts, insurance policies, remittance records, travel records, and dated bank transactions.

Upon submission of the application, DHS will not deny the application until it sends out a Request for Initial Evidence (RFI), and the applicant fails to submit the evidence including requested biometric data by the deadline date. If the applicant fails to comply with the request and the application is denied, the individual can submit an amended application or supplement the existing application without an additional fee as long as the amended or supplemented application contains the required information and any fee that was missing from the initial application.

Denied applications can be appealed to an administrative appellate authority to be established or designated by DHS, and administrative appeals are limited to one for each decision. The time for appeal is 90 days from the date of service of the denial unless a delay beyond the 90 day period is reasonably justifiable. Further judicial review is allowed and governed by the rules involving immigration cases.

Approved applicants will be allowed to remain in the US for six years with travel and work authorization. A further extension of six years is possible. Applicants are eligible to apply for adjustment of status to permanent residence after five years of lawful prospective immigrant status.

For those concerned that DHS may share the submitted application information for removal proceedings or other purposes, there is a strong privacy restriction against the sharing of information except to a duly recognized law enforcement entity in connection with an investigation or prosecution of a criminal or national security offense, or for identification purposes of identifying a deceased individual upon request of an official coroner.

This part of the big bill affecting undocumented immigrants is to be fast tracked as the DHS Secretary is to issue a final regulation no later than 180 days after the President signs the legislation into law.

Hopefully the legislation will come to pass as it is long needed not only to bring people out of the shadows and to help reverse the reign of terror fostered by the Trump administration, but to help grow the economy as all serious studies have shown that immigrants-lawful and unlawful-benefit this great country socially, economically, and culturally.

[Please note that this article does not purport to be an extensive article outlining most of the “US Citizenship Act” or even cover all classes eligible to become lawful prospective immigrants. It touches on the major points of the legislation for the undocumented and those with final orders.]

 

As published in the Immigration Daily on January 25, 2021

By this time last year, USCIS had already come out with the rules for employer registration for the new H-1B season along with the timetable. At the time of this writing, nothing has been sent by Washington on timing or procedure. It may well be because we have a new administration with a new DHS chief, Alejandro Mayorkas, awaiting confirmation, and no one is certain what the Biden policy will be. His appointment of Marty Walsh, the Boston mayor and affirmed champion of the working people and a former union leader, indicates that President Biden may not be as sympathetic in the H-1B arena as he is in other areas of immigration. Indeed, the White House fact sheet of January 20, 2021 explaining “The US Citizenship Act of 2021” stated as a goal that “The bill… incentivizes higher wages for non-immigrant, high-skilled visas to prevent unfair competition with American workers.”

A look at the H-1B midnight regulations of the Trump administration and their present state may give us an idea of what options and dangers may loom for new cap subject H-1B’s in the upcoming months. There were three related regulations:

1. The regulation for high wages to be favored in the employer registration selection system, “Modification of Registration Requirement for Petitioners Seeking To File Cap-Subject H–1B Petition,” was published on 1/8/21 and slated to go into effect on 3/9/21.
2. The regulation bringing back the Department of Labor (DOL) rule dramatically increasing wage levels, “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United “States,” was published on 1/14/21, and set to go into effect 60 days thereafter (3/15/21). Under the rule, DOL would gradually phase in the new wages over a period of a year and a half, with the first increase to take place on 7/1/21. For H-1B workers who are beneficiaries of approved I-140 petitions as of 10/8/21, the phase-in period for increased wages was extended to 3 ½ years.
3. The DHS regulation, “Strengthening the H-1B Nonimmigrant Visa Classification Program,” bringing back the court rejected regulation in truncated form and only including the provision making end-user organizations file LCA’s and H-1B petitions (redefining the employer-employee relationship) was published as an advance copy on 1/15/21, still needs to be published in the Federal Register, and if published would not take effect for at least 180 days. (DOL acknowledged on 1/21/21 that the regulation is a nonstarter by withdrawing its supportive Office of Foreign Labor Certifications (OFLC) H-1B Program Bulletin and Wage & Hour Field Assistance Bulletin espousing DHS’s regulation as validating its own interpretation along with withdrawing a notice for publication in the Federal Register announcing and requesting public comments on the interpretation).

Under Biden Chief of Staff Ron Klain’s memo of January 20, 2021, stopping whatever midnight rulemaking could be withdrawn or paused by memo, all pending regulations were to be withdrawn and agencies instructed to consider postponing for 60 days regulations that had been published but not yet implemented. The shutdown memo has the following effects on the three regulations:

1. As the first and second were published, the agencies must consider postponing them for 60 days since they have not yet been implemented, but whether they will be withdrawn depends upon the new administration’s views on the regulations.
2. If the administration favors the first two regulations, they could go into effect as scheduled on 3/9/21 and 3/15/21 respectively under one of the memo’s exceptions to 60 days postponement. However, the second regulation would have no effect on this H-1B season as the raising of wage levels would not come into play until 7/1/21, which would be after this year’s H-1B season is over.
3. The third regulation is definitely to be withdrawn under the Klain memo as it has not been published.
4. The major questions lie with the first regulation. So far, there is seemingly no direction as to when H-1B season will begin or what the rules will be. While some lawyers believe that H-1B registration must begin on March 1^st, that is not a magic date as such was just the date to start accepting registrations for 2020, the first year of implementation for the employer registration system. This year, registrations could begin on 3/15/21 or even 4/1/21, and USCIS would just have 15 or 30 more days of the backend of adjudication, e.g. instead of adjudicating a case on 9/2/21, it may adjudicate on 10/2/21.

There is also no guarantee that USCIS will use an employer registration system this year as it could revert to the former system of all petitioners submitting full H-1B packages in hopes of being selected, but the success of the registration program last year dictates otherwise.

The good news is that President Biden is much more balanced than his predecessor, and any changes should be analyzed, reviewed, and measured rather than produced by mercurial temperament. H-1B petitioners this year should have certainty concerning the OES wage system and stand unaffected by the attempted changes to the definitions of specialty occupation and employer-employee relationship. Indeed, the court victories against the second and third regulations provide H-1B practitioners with more arguments on these issues.

The first regulation’s shifting the odds of selection dependent upon an employer’s ability to pay higher wages to its H-1B workers should not be supported by this administration for many reasons, including the resultant stifling of innovation and promotion of discrimination against smaller sized organizations with specialty occupation positions to be filled, but without deep pockets to increase levels of pay like their larger sized competitors, e.g. large biotech companies willing to pay two or three times the going rate for researchers while smaller ones with equal or superior promise cannot reach that wage level, and so are unable to secure needed scientists, researchers, chemists, and the like.

As published in the Immigration Daily on January 11, 2021

Notwithstanding the debacle in the Capitol this past week and fears that an unstable president will unleash actions to further endanger or divide the country during his last nine days in office, the victory of the Democrats in the two senatorial races in Georgia promises hope to immigrants as well as others affected by the steady parade of regulations that the Trump administration has been marching out in the last months.

Some of the regulations that could be canceled under the Congressional Review Act or an immediate regulatory freeze are the H-1B rule tying lottery selection to highest wages offered (86 FR1676 finalized on 1/8/21 with implementation date of 3/9/21); the no traditional administrative closure rule as used by immigration judges and the BIA despite over 1 million plus pending asylum cases (85 FR 81588 in effect on 1/15/21); the DHS/ EOIR joint rule tying eligibility for asylum to health concerns as affecting the security of the US (85 FR 84160 effective 1/22/21); the DHS/DOJ joint rule barring asylum to those who transit third countries without applying for asylum in one of the countries (85 FR 82260 effective 1/19/21); and the USCIS/EOIR rule imposing seven mandatory bars on asylum (85 FR 67202 effective 11/19/20).

1. The Congressional Review Act:

The Congressional Review Act, established in 1996, allows a joint resolution of Congress to nullify regulations finalized in the last 60 days of the legislative session if such is done in the first 60 legislative days of the new Congress. Now that the Senate is in the hands of the Democrats, a simple majority of both houses of Congress allows a joint resolution of disapproval to be made and signed by the president. This is the expedited procedure envisioned by Congress in 1996 to cancel midnight regulations of the previous administration.

60 legislative days are not the same as 60 calendar days, and although the author does not have complete calendars of the days that Congress was in session in 2020, the look back conceivably affects all passed regulations since August 2020. In looking forward and seeing the Congressional calendar for 2021, and taking into account that changes can be made and that the counting of the 60 days does not begin until January 15, Congress could conceivably pass joint resolutions through April 2021. An example of the applicable timeline is that on March 27, 2017, a Department of Defense, General Services Administration, and National Aeronautics and Space Administration rule amending the Federal Acquisition Regulation (FAR); Fair Pay and Safe Workplaces (81 Fed. Reg. 58,562 (Aug. 25, 2016)) was overturned (see Pub. L. No. 115-11 (March 27, 2017)).

The Act can also be used to nullify other agency memos, guidance documents, statements of policy, and interpretive rules that are in effect rules but were never submitted to Congress. In such case, the General Accountability Office (GAO) would verify that such qualify as rules, and Congress then has 60 legislative days to pass a joint resolution of disapproval. This is another tool by which agency rulemaking without going through the regulatory process during the Trump years can be further nullified. Since a “rule” is not legally a rule without being submitted to Congress, another choice of the Biden administration in that situation would be to publish a notice that the rule not being in effect is being withdrawn or abandoned.

2. The Regulatory Freeze:

Implementation of a regulatory freeze on January 20, the day of inauguration, would immediately stop whatever regulations have not yet been finalized as of that date. Jen Psaki, a Biden spokesperson, said that the Biden-Harris White House would issue a memo to take effect on the afternoon Eastern time on January 20 to halt or delay midnight regulations, actions taken by the Trump administration that will not have taken effect by Inauguration Day. If it is similar to the memos put out by Rahm Emanuel in January 2009 and Reince Priebus in January 2017, the memo would have three components:

• Subject to some exceptions for emergencies, no regulation should leave the Office of Information and Regulatory Affairs (OIRA) or agencies to be published in the Federal Register.
• For regulations sent for formal publication, they should be withdrawn and reviewed.
• For recent regulations that have been published, temporarily postpone the effective date by 60 days, subject to certain exceptions. In addition, agencies should consider proposing for notice and comment a rule to delay the effective date beyond 60 days.

With reference to published regulations yet not implemented, an agency like DHS could temporarily postpone the effective date of the regulation by 60 days while reopening the regulation for further notice and comment, and upon receiving comments, either withdraw the final rule or extend the effective date of it.

3. The Dawn of a New Day?

Joe Biden and Kamala Harris have great opportunity early in the administration to capture many goals, especially with Republican legislators not so beholden to Trump and his agenda after the bloodshed and violence incited by the president against the Congress on January 6. Memories are short, however, and action should be quick as Republican legislators voicing outrage now may be less inclined to go against the Trump agenda dependent upon time and Trump’s ability to hold onto his base. Also the Democrats’ hold on power in the Congress is tenuous, one vote in the Senate and a few votes in the House. A major difficulty of introducing any bill related to immigration now of course is the pandemic and the ability to move the legislation in the face of an out-of-control pandemic and so many Americans out of work. The question is also whether the Democrats can have a united caucus in both houses of Congress on immigration issues. Added into the mix on employment-based matters is the willingness of the Biden administration to rescind the Trump changes given that Democrats in the past have been the party sounding the clarion call against foreigners taking jobs in this country. The recent designation of Boston mayor Marty Walsh, a former union leader, to become the Secretary of Labor is not inspiring as he has been described as a “lifelong champion of the working people.” The lessons of the past, however, have shown that the best chances for immigration reform success are in the first days of an administration. So we urge the Biden administration to take its cue from history and act accordingly – not just on the huge ticket items of legalization for 11 million undocumented immigrants and a pathway to citizenship for the Dreamers, but also on the smaller items such as outlined above.

 

As published in the Immigration Daily on January 4, 2021

Before he is inaugurated, Joe Biden should appoint an immigration advisor who has his ear the same way that Stephen Miller has had Donald Trump’s ear during the past four years. The damage to the field of immigration and to humanity that such a close association has had – an appalling number of executive orders, regulations, interpretations, and guidances to the agencies charged with overseeing the border, points of entry, adjudications, immigration court procedures and decisions – can only be undone by a Stephen Miller clone with opposite views and energy who is close to the president. The influence that he has had with the president has been complete including a hand in over 400 immigration executive actions identified by the Migration Policy Institute by July 2020.

On day one of his presidency, Joe Biden should put a freeze on all federal regulations which have not already been implemented. An excellent article by the American Immigration Lawyers Association (AILA) on December 9, 2020, “Trump Policies That May Be Finalized before Inauguration Day 2021” listed a number of regulations that the current administration wishes to finalize before leaving office. Some of them at this point have already been implemented. A portion from the article follows:

• 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. OIRA review can take a few months, but in the recent past it has been expedited to be concluded in 30 days or has been waived entirely. 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)
  • *** DOJ/EOIR Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure Final Rule 85 FR 52491, 8/26/20 (OIRA review completed on 12/3/20, awaiting publication of Final Rule)
  • *** EOIR Final Fee Rule 85 FR 11866, 2/28/20 (OIRA review completed on 12/3/20, awaiting publication of Final Rule)
  • *** Security Bars and Processing due to COVID-19 Final Rule related to asylum applicants traveling through Mexico (and possibly Canada) – (Received by OIRA on 10/16/20 – was not previously published as a proposed rule), RIN # 1615-AC60.
  • DHS Special Immigrant Juvenile Petitions Final Rule (Received by OIRA on 10/13/20)
  • Implementation of the Electronic System for Travel Authorization (ESTA) at U.S. Land Borders Interim Final Rule (completed OIRA Review on 11/10/2020; but withdrawn).
  • Temporary Agricultural Employment of H-2A Nonimmigrants in the United States (Received by OIRA on 11/24/20)
  • *** DOJ/EOIR Proposed Rule on Procedures for Asylum and Withholding Rule; 85 FR 58692, 9/23/20; (Received by OIRA on 11/24)
  • DOJ/EOIR Final Rule on Jurisdiction and Venue in Removal Proceedings; 72 FR 14494, 3/28/07 (Received by OIRA on 12/4/2020)
    
    
• 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. In this scenario, the government could either start afresh and issue a notice of proposed rulemaking, solicit comments, and then issue a final rule or issue a new final rule based on the comments received on the interim final rule. Given the limited time remaining in this administration, the latter is the most probable scenario.

• • 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. Typically, it takes months to review all comments, respond and draft a final rule, and have it cleared through agency, department and OIRA review. However, the administration may have things already in motion to finalize it, especially if they do not intend to make any policy changes based on comments.
  
  
  • *** DHS/DOJ Proposed Rule on Security Bars and Processing, 85 FR 41201, 7/9/20; (Comment period closed on 8/10/20; 5,081 comments received).
  • *** DHS/USCIS Proposed Rule on the Use and Collection of Biometrics, 85 FR 56338, 9/11/20. (Comment period closed on 10/13/20; 5,338 comments received).
  • *** 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 Professional Conduct for Practitioners—Rules and Procedures, and Representation and Appearances; 85 FR 61640, 9/30/20; (Comment period closed on 10/30/20; 41 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)
  • *** DHS/USCIS Affidavit of Support Proposed Rule, 85 FR 62432, 10/2/20. (Comment period closed on 11/2/20; 326 comments received.)
  • *** DHS/USCIS H-1B Lottery Proposed Rule – 85 FR 69236, 11/2/20; (Comment period closes on 12/2/20; 1,478 comments received.)
    
    
• 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). Submit a comment here.
  • DOS NPRM Eliminating B-1 in lieu of H-1B – 85 FR 66878, 10/21/20; (Comment period closes on 12/21/2020).
  • *** 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).
  • DOJ/EOIR Notice of Proposed Rulemaking to Define “Good Cause”, 85 FR 75925, 11/27/20 (comment period closes on 12/28/20).
  • DOJ/EOIR Notice of Proposed Rulemaking on Motions to Reopen, Motions to Reconsider, and Stays of Removal, 85 FR 75942, 11/27/20 (comments period closes on 12/28/20).
    
    
• 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.
  
  
  • DHS/USCIS Proposed Rule on Provisional Waivers – sent to OIRA on 9/29/20.
  • DHS/USCIS Proposed Rule Rescinding H-4 EADs – sent to OIRA on 2/20/19.
    
    

The sacrificed lives and continued toll on legal and undocumented immigrants, US citizens and permanent resident parents, children, brothers and sisters, US companies, innovation and the economy demand such attention from Day 1.

Without an immediate freeze, implemented regulations are harder to retract, especially without control of the Senate. At least some of the above proposed regulations will still be floating around on Inauguration Day. The Congressional Review Act (CRA) could eliminate the implemented regulations by simple resolution, but require a majority of both houses of Congress. With Mitch McConnell in charge of the Senate, that will not happen. January 5, 2021, will determine control of the Senate dependent upon the results of the two senatorial contests in Georgia.

Without an advisor solely dedicated to immigration changes and working hand-in-hand with the president, four years will not undo the damage of the last four years. So far, we have seen two cabinet picks, Susan Rice and Alejandro N. Mayorkas, whose roles impact on immigration. As the Director of the White House Domestic Policy Council, Ms. Rice is to have an expanded role over the administration’s approach to immigration, healthcare, and racial equality. Mr. Mayorkas in his post of Secretary of Homeland Security is directly charged with governing that huge agency of which there are 16 separate agencies including FEMA, the TSA, US Coast Guard, US Secret Service, and Office of the Inspector General. Their portfolios are too large to get down to the brass tacks that the job requires to reverse the work of Trump/Miller. As described in thebulwark.com article, “Uninstalling Stephen Miller,” on December 17, 2020,

As a senior advisor to the president, Miller used his position to focus on immigration while avoiding the congressional scrutiny to which agency officials are subject. Miller frequently circumvented department heads, opting instead to call lower-level staff to implement his orders, reportedly telling them things like “This is the most important thing you will do at your agency.” Without looping in cabinet secretaries, Miller would hold weekly meetings with their subordinates, occasionally helping get promotions for those who shared his beliefs. Even senior officials reported that they frequently felt torn between Miller and the actual head of their agency. Miller and his allies would go “out of their way to vilify all immigrants,” demanding press releases whenever a refugee or immigrant committed a gruesome crime. This tendency of Miller’s was underscored by his correspondence with officials at the Department of Justice (DOJ) to manufacture statistics linking immigrants to violent crime and terrorism—efforts that were the likely impetus for a misleading 2019 DOJ report claiming that immigrants now comprise 64 percent of all federal arrests, having “more than tripled,” between 1998-2018.

The job does not require someone as Machiavellian as Miller. President Biden needs a “horse whisperer” like Miller who can access the president and help coordinate immigration policy with Rice and Mayorkas. An advisor who must pass ideas through the cabinet members to get to the president would not be nearly as effective. Hopefully there will be a successful search for such a person.