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December 2, 2020 – As the Biden-Harris administration prepares to take office, many anxiously await what immigration policies the Trump administration will finalize in the lead up to Inauguration Day in the form of new regulations, memos, and proclamations.
While it may be a “lame duck” period, it is one of the busiest as an administration will do all in its power to leave its legacy intact, and policies that are finalized and taken effect by January 20, 2021 will be more difficult for a new administration to undo.
Racing to the finish line is not unique to the Trump administration. Historically, each outgoing administration makes a mad dash before Inauguration Day to finalize policy priorities.
In normal times, it can take at least six to 12 months to finalize a regulation. But the Trump administration has cut corners in the last four years—and will likely do so again now—to expedite the regulatory process by shortening review timelines or skipping entire parts of the process.
The Trump administration’s immigration legacy is based on paralyzing humanitarian protection programs, making the legal immigration system harder to access, and keeping out foreign workers under the guise of protecting American workers. And we can expect more of the same in these final days.
Studying the Trump administration’s presidential orders and agenda will be a helpful guide—though anything goes in the next two months.
Extension of COVID-19 Travel Bans
It is likely that with the flick of a pen, the Trump administration will extend these proclamations well into the Biden administration. While procedurally easier to overturn, these proclamations will be politically challenging to reverse given the ongoing COVID-19 pandemic and related economic downturn.
New Restrictions on Humanitarian Protections
The administration will likely continue its attack on humanitarian protection and due process, as there are many asylum regulations and immigration court rules that are in the final stages of review.
For example, a final rule that would restrict eligibility for asylum seekers who have traveled through Mexico or Canada is in the final stages of review.
Another rule proposed in the summer seeks to completely overhaul the asylum and withholding of removal process is nearing the finish line.
The Department of Homeland Security (DHS) and the Department of Justice (DOJ) are also drafting the final version of another asylum rule that would use the COVID-19 pandemic as a pretext to bar even more people from relief.
Finally, the government is racing to finalize several rules related to immigration courts. These include an Executive Office for Immigration Review rule that revises appellate procedures and requirements for administrative closure, another that addresses practitioner conduct, and a fee rule.
Additional Barriers to the Legal Immigration System
The Trump administration is also focused on finalizing rules that make it harder for individuals to access the legal immigration system.
In the past few months, DHS published a proposed regulation that would require an individual who is sponsoring an immigrant by filing an Affidavit of Support to submit significantly more evidence in order to do so.
DHS has also pushed through a regulation that will require applicants and petitioners—regardless of their age or citizenship—be subject to greater biometrics capture, including DNA collection and voice prints.
The comment periods have closed on both rules and DHS is likely in the processing of drafting a final rule to address the thousands of comments received.
Continued Attacks on High-Skilled Foreign Workers
In addition to keeping foreign workers out by extending travel bans, the Trump administration will likely continue its assault on high-skilled immigrants and students.
Two recently proposed rules would have disastrous consequences for the health care industry, universities, non-profits, and businesses alike if finalized.
The first is a DHS rule that seeks to change the length of time individuals are admitted to the United States as students, exchange visitors, and journalists. The public responded to the rule with more than 32,000 comments, which should help slow down its final implementation.
The second rule, which is still open for public comment, prioritizes the selection of H-1B petitions only for those foreign professionals who are the highest paid. This rule will prevent U.S. employers from being able to fill many entry-level jobs.
If final rules are not published before Inauguration Day, the Biden administration can stop work on the rules, make necessary changes, or rescind them altogether. To help slow the agencies’ ability to finalize these midnight regulations and policies, the public can help by submitting individual comments to Notices for Proposed Rulemakings, such as the H-1B Lottery Rule.
If the rules are finalized, legal challenges may help to enjoin or set aside the rules, which may result in rescission of the rules pursuant to court mandate. While the road ahead is uncertain, what is clear is that the Trump administration will keep pushing immigration changes until the bitter end.
ImmigrationImpact.com is a project of the American Immigration Council.