Trump Administration Releases Fall Regulatory Roadmap

By RJ Hauman | October 19, 2018

Last week, the Office of Management and Budget (OMB) released the Trump administration’s unified regulatory agenda, revealing how immigration policy is likely to change in the coming months. The document is a semi-annual reporting of regulations being considered by the federal government. Overall, the agenda’s immigration-related proposals underscore the Trump administration’s commitment to securing the border and protecting American workers.

The most significant immigration-related proposals include:

1. Defining the term “public charge.” To conform policy to existing federal law and protect American taxpayers, the agency has proposed regulations to define this term regarding the inadmissibility of an alien who is likely to become dependent on public assistance.




2. Flores Settlement Agreement. The administration has proposed regulations related to the apprehension, processing, care, custody, and release of Unaccompanied Alien Children (UACs) that would terminate the Flores Settlement Agreement. The rule would create an “alternative” to the existing licensed program requirement for family residential centers, including the ability to detain family units together during the entirety of their immigration proceedings.




3. Asylum reform. To respond to the national emergency caused by the influx of Central American migrants along the southwest border, the administration is considering reforms to make the adjudication of credible fear claims more efficient while upholding U.S. treaty obligations and law that prevent the return of aliens to a country in which they would be persecuted or tortured. In combination with other policy, operational, and legal reforms, these changes would reduce the strain on DHS resources by deterring illegal migration to the United States.




4. Rescinding International Entrepreneur Parole. This policy, which was published in the Federal Register in January 2017, created a program to allow foreign entrepreneurs to be considered for parole into the U.S. if they had established a start-up entity and have received substantial financial investments or otherwise promised innovation or job creation. This Obama-era policy circumvents existing immigration law and numerical caps that regulate employment-based immigration. Grossly exceeding the agency’s parole authority, this policy allows foreign entrepreneurs seeking to work in the U.S. to enter without obtaining visas.




5. Strengthening the H-1B nonimmigrant program and petitioning process. The H-1B program allows businesses to temporarily employ foreign workers in occupations that require highly specialized knowledge and a bachelor’s degree or higher in the specific specialty. The administration will likely revise the definition of “specialty occupation” to prioritize the “best and the brightest” and redefine the employer-employee relationship. Both reforms are aimed at better protecting American workers against outsourcing and wage depression. The administration also intends to create an electronic registration system to streamline the application process.




6. Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Work Authorization. The administration is considering removing the Obama-era rule that allows H-4 visa holders, who are dependent spouses of H-1B nonimmigrants, from receiving work authorization. The Obama administration issued this rule in February 2015, which allowed about 130,000 spouses and children of H-1B visa holders to work in the U.S. last year.




7. Modernizing EB-5 Immigrant Investor program. The EB-5 program was created by Congress in 1990 to award green cards to foreign investors and their immediate family members. The program allocates 10,000 visas every year to foreign investors who create or preserve at least ten jobs and invest at least $1 million. However, in 2002, Congress created the Immigrant Investor Pilot Program, which reserves 3,000 EB-5 visas for investors who participate in the program through “Regional Centers” in rural or high unemployment areas. These participants are only required to invest $500,000 and have less strict job creation requirements. DHS Office of Inspector General and the Government Accountability Office audits have repeatedly exposed evidence of pervasive fraud and mismanagement throughout both programs.

The administration must publish the proposed regulations in the Federal Register to allow the public an opportunity to comment on them before the agency can make these administrative changes. Once the agency has reviewed the comments, it will decide whether to issue a final regulation.