Trump Policies That May Be Finalized Before Inauguration Day 2021

January 20, 2021

As expected, on Day One, the White House Issued a Memo on a Regulatory Freeze Pending Review.

January 12, 2021

Rules that are published as Final but are scheduled to take effect after Inauguration Day: The effective date of these rules will likely be delayed by 60 days based on a memo freezing regulatory action that the Biden administration is expected to issue on Day One.

• DHS/DOJ Proposed Rule on Security Bars and Processing (Takes effect 1/22/21)
• DHS and DOL Direct Final Rule to Extend Discretionary Secretary of Labor Review to H-2B BALCA Cases (Takes effect on 2/3/21)
• DHS/USCIS H-1B Wage-Based Lottery Final Rule (Takes effect on 3/9/21).
• Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States (Takes effect on 3/15/21)

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. We expect that the Trump administration will continue full steam ahead until January 20, 2021. In the past 4 years, this administration has prioritized paralyzing humanitarian protection programs, making the legal immigration system inaccessible to those who are not the wealthiest, and keeping out foreign workers under the guise of protecting American workers. These points may serve as an important guide when reviewing the list below to understand what the Administration may prioritize among others. However, as has been the case with this administration the only thing that is for sure is that we can always expect to expect what we are least expecting. As such, AILA has compiled this 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. We are denoting what are likely high priority items with (***) and items that have changed since our last update on December 9, 2020, in yellow highlight. You can stay up to date on these Executive Actions on AILA’s Tracking Notable Executive Action webpage.

Presidential Actions

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) (86 FR 417 1/6/21) were extended until March 31, 2021. The extension will require 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.

Regulatory Actions

An administration will seek to publish and make effective 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.¹ On Day One of 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.²

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. 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.

• *** 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).
• DHS Special Immigrant Juvenile Petitions Final Rule 84 FR 55250, 10/16/19 (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 Final Rule on Jurisdiction and Venue in Removal Proceedings; 72 FR 14494, 3/28/07 (Received by OIRA on 12/4/2020)
• ***DHS/USCIS Proposed Rule on the Use and Collection of Biometrics, 85 FR 56338, 9/11/20. (Received by OIRA on 12/15/20).

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. Our understanding is that the rule will be republished as final on 1/14/21, but will not take effect immediately.
• 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/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).
• *** DHS/USCIS Affidavit of Support Proposed Rule, 85 FR 62432, 10/2/20. (Comment period closed on 11/2/20; 326 comments received).
• DOS NPRM Eliminating B-1 in lieu of H-1B - 85 FR 66878, 10/21/20; (Comment period closed on 12/21/2020; 13 comments received).
• *** DHS/USCIS NPRM Elimination of Employment Authorization for individuals with Orders of Removal - 85 FR 74196, 11/19/20 (Comment period closed on 12/21/20; 305 comments received).
• 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 closed on 12/21/20; 51 comments received).
• DOJ/EOIR Notice of Proposed Rulemaking to Define “Good Cause”, 85 FR 75925, 11/27/20 (Comment period closed on 12/28/20; 666 comments received).
• DOJ/EOIR Notice of Proposed Rulemaking on Motions to Reopen, Motions to Reconsider, and Stays of Removal, 85 FR 75942, 11/27/20 (Comment period closed on 12/28/20; 467 comments received).
• DOJ/EOIR Executive Office for Immigration Review Electronic Case Access and Filing, 85 FR 78240, 12/4/20 (Comment period closed 1/4/21; 4 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.

• 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.

• 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.

Policy Memos/Policy Manual Updates/Procedural Updates.

The Administration can quickly finalize these types of policy or procedural updates, as we have seen in the past few weeks. The policy memos typically take effect immediately, even if the agency will accept comments after the fact. Unfortunately, we would not have advance visibility in these types of publications. Policy memos that have been recently published include revisions to naturalization test, child status protection act application, use of discretion in adjustment of status adjudications, changes to naturalization adjudications, AC21 job portability, EOIR scheduling orders, EOIR processing of Asylum Applications, and EOIR Memo on Continuances. If these types of documents are published in the final days, a new administration would have to issue a new policy memo to overturn that action or if it is substantively a rule, it could be overturned by the CRA.

Impact of Litigation on Implementation of Regulations and Policy Memos.

Several regulations and policy memos have already taken effect but are being challenged in court. Whether a new administration may more easily overturn these policies will be dependent on whether they have been set aside or enjoined by a court by Inauguration Day. For example, litigation is pending on the following:

• USCIS Fee Rule
• DHS and DOS Public Charge Rule
• Procedures for Asylum and Bars to Asylum Eligibility
• Asylum Application, Interview, and Employment Authorization for Applicants
• Third Country Transit Ban
• DHS H-1B Specialty Occupation Interim Final Rule
• DOL Prevailing Wage Interim Final Rule
• DACA memo
• Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review

Confirmation of Chad Wolf as Secretary of the Department of Homeland Security.

The status of many of the DHS promulgated rules depends on whether Chad Wolf is confirmed by the Senate before the end of the administration. Various courts have struck down rules and policy memos issued by Chad Wolf because they have found his appointment unlawful. However, if he is appointed timely, he may be able to ratify his prior actions which may allow them to take/remain effect. Given the limited time and the Senate’s current focus on judicial appointments, they may not take up Wolf’s nomination. On January 7, 2021, the Administration rescinded its nomination of Chad Wolf. Effective midnight January 12, 2021, Chad Wolf resigned from his position, noting that FEMA Administrator Pete Gaynor will serve as Acting Secretary. In his resignation announcement, he specifically notes that one reason for resignation was “the ongoing and meritless court rulings regarding the validity of my authority as Acting Secretary.” This signals that the administration will attempt to ratify the disqualified regulations before January 20th.

Final Rules that have been published since August 21,2020,³ and will take effect before Inauguration Day, unless enjoined by a Court.

• CDC Rule Finalizing Interim Final Rule on Foreign Quarantine (9/11/20)
• USCIS Temporary Final Rule on Interpreters at Asylum Interviews (9/23/20)
• DHS Final Rule Exempting "ALL-038 Insider Threat Program" System of Records from Privacy Act (10/6/20)
• EOIR Interim Final Rule Creating Chief Administrative Law Judge Position for OCAHO (10/7/20)
• DOJ Interim Final Rule on Issuance and Use of Guidance Documents (10/7/20)
• DOL Interim Final Rule on Computation of Prevailing Wage Levels; (Took effect on 10/8/20; Set aside on procedural grounds by a Court, could be issued as a final rule based on comments received.)
• CDC Rule Finalizing Interim Final Rule on Foreign Quarantine (10/13/20)
• Final Rule on Organization of EOIR (11/3/20)
• USCIS and EOIR Final Rule on Bars to Asylum Eligibility (Original effective date 11/20/20; currently enjoined)
• USCIS Interim Final Rule Revising Definition of “Specialty Occupation” (Original effective date 12/2/20; Set aside on procedural grounds by a Court, could be issued as a final rule based on comments received.)
• DOL Final Rule on Adverse Effect Wage Rate Methodology for Non-Range H-2As (12/21/20; currently enjoined)
• DOS Temporary Final Rule Creating Visa Bond Pilot Program (12/24/20)
• Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review (Original effective date 1/11/2021; currently enjoined)
• EOIR Final Rule on Procedures for Asylum and Withholding of Removal (Takes effect 1/15/21)
• EOIR Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure (Takes effect on 1/15/21)
• Joint DHS/DOJ Asylum Eligibility and Procedural Modifications (Third Country Transit Ban) (effective 1/19/21)
• EOIR Final Fee Rule. (Takes effect on 1/19/21)

Rules that are published as Final but are scheduled to take effect after Inauguration Day

The effective date of these rules will likely be delayed by 60 days based on a memo freezing regulatory action that the Biden Administration is expected to issue on Day One.

• DHS/DOJ Proposed Rule on Security Bars and Processing (Takes effect 1/22/21)
• DHS and DOL Direct Final Rule to Extend Discretionary Secretary of Labor Review to H-2B BALCA Cases (Takes effect on 2/3/21)
• DHS/USCIS H-1B Wage-Based Lottery Final Rule (Takes effect on 3/9/21).

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1. The CRA allows Congress to review "major" rules issued by federal agencies before the rules take effect. Congress may also vacate new rules by a simple majority joint resolution (and are not subject to filibuster) if the rules were issued within the last 60 legislative calendar days of a session. 5 U.S.C. § 802. For 2020, the review period is likely for rules issued on or after August 21, 2020 and Congress may act within the first 60 legislative days of the new session. However, given the slim control that Democrats have in both Chambers and other restrictions on regulating in a substantially similar form, use of the CRA will prove to be challenging.

2. CRS Insight “Can a New Administration Undo a Previous Administration’s Regulations”? Maeve P. Carey, 11/21/16 available at https://fas.org/sgp/crs/misc/IN10611.pdf

3. AILA chose this date, as this is the likely date for the CRA review period, as noted above.

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Cite as AILA Doc. No. 20112338.