The final days of an outgoing administration have historically proven to be some of the busiest. Administrations have worked hard in their waning days in office to publish their key priorities and take steps to preserve their policy legacy. It is expected that the current administration will continue full steam ahead until January 20, 2021.
AILA (American Immigration Lawyers Association) has compiled a list of actions that may be on the horizon, but with the understanding that it is impossible to cover or predict all the immigration actions on the horizon.
Presidential Proclamations and Executive Orders are some of the easiest and quickest actions an administration can take; however, they can also be easily revoked by an incoming administration.
- Presidential Proclamation 10014 and 10052, “Suspending Entry of Immigrants and Nonimmigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak." (85 FR 23441, 4/27/20) (85 FR 38263, 6/25/20) are set to expire on December 31. It is very likely that these will be extended; requiring the new Administration to affirmatively rescind them.
- Executive Order Limiting Birthright Citizenship. Various news agencies have reported that this order is expected, even though it is highly suspect to legal challenge.
- Schengen/UK Travel Ban – This may be lifted to back Biden into a corner.
An 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 This is because any rule that has been finalized cannot be rescinded unless it goes through rulemaking process, is set-aside by a court, or are rescinded by Congress by way of the Congressional Review Act.
On Day One of a new Administration, an incoming President will typically issue a memorandum to the Executive Branch ordering that 1) they do not send any proposed or final rules to the Office of Federal Register; 2) withdraw any rules pending at the Federal Register; and 3) automatically postpone any rules that have not yet taken effect by 60 days.
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.
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. This was the rule that significantly increased the OES prevailing wages on 10/8/2020. (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. This was the proposed rule that would have changed the definition of an employer and limited H-1B approvals for staffing companies to one year, among other things. (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/ICE Elimination of Duration of Status Rule for those in F and J status; 85 FR 60526, 9/25/20; (Comment period closed on 10/26/20; 32,083 comments received).
- DHS/USCIS H-1B Lottery Proposed Rule – 85 FR 69236, 11/2/20; (Comment period closed on 12/2/20; 1,478 comments received.)
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 Rescinding H-4 EADs – sent to OIRA on 2/20/19.