White House Previews Immigration Regulations for Remainder of 2024

FAIR Take | August 2024

Twice a year, executive branch departments release their regulatory agenda via the Federal Register, signaling to the public what rules will be proposed, developed, or finalized in the months ahead. In early July, the Biden Administration unveiled its latest agenda, and predictably, it does not focus on border security or enforcement measures that would restore the rule of law. Rather, its agenda focuses on “streamlining” processes for foreign nationals, prioritizing humanitarian applications and benefits (such as asylum), and skirting the intent of Congress to keep the borders open to all.

While this “Unified Agenda” only lists regulatory actions that will undergo the “Notice and Comment” rulemaking process, it does not take into account executive actions that the department will take outside of this process. In fact, the Biden Administration has already announced it will create a new “pathway” for illegal alien spouses of citizens by granting them parole-in-place, the unlawful and invented administrative amnesty that allows aliens to live, work and remain in the country without fear of deportation.

The Department of Homeland Security’s Unified Agenda can be altered or added to at any point, but the initial list is intended to promote transparency and to describe any actions the department is developing that could have a significant effect on small businesses and other small entities. Below is an overview of actions likely to come from the three major immigration agencies within the Department of Homeland Security (DHS) during the remainder of 2024.

U.S. Customs and Border Protection (CBP)

While many of the rules being worked on by Customs and Border Protection are related to passengers and cargo inspections (via aviation or vessels), the agency has signaled that it intends to finalize regulations related to 1) the Visa Waiver Program for Guam and the Commonwealth of the Northern Mariana Islands; and 2) implementation of the Electronic System for Travel Authorization at U.S. Land Borders.

Notably, appearing for the first time on the Unified Agenda, DHS is also proposing a regulation entitled, “Family United Principles.” More specifically, the Department says it intends to propose regulations to promote family unity, to define what constitutes a “separation of a family encountered at the U.S. border or ports of entry,” to detail limited circumstances when DHS may separate parents or legal guardians from their minor child, and establishing when DHS must “facilitate a separated family’s reunification.” This regulation, much like a recent settlement agreement the Biden Administration signed to end litigation, appears intended to bind the ability of future administrations to enforce our immigration laws, especially against human traffickers and smugglers.

U.S. Citizenship and Immigration Services (USCIS)

U.S. Citizenship and Immigration Services’ agenda includes 17 regulatory actions, some of which are holdovers from previous years. Of the 17 potential rules, 9 would be newly proposed and 7 would be finalized regulations. The rules would include changes related to the following:

• Amending rules related to employment authorization documents to “increase flexibility” for aliens in the U.S. who seek to work;
• Amending asylum and withholding of removal procedures;
• Waiving an in-person interview requirement for refugee applicants;
• Modifying U visa (victim of crime) eligibility requirements;
• Allowing the concurrent filing of visa petitions and adjustment of status applications to make it easier for aliens seeking lawful permanent residence; and
• “Modernizing” adoptions and naturalizations.

USCIS seeks to finalize rules related to asylum procedures, the H-1B visa program, the administratively-created International Entrepreneur Program, and the “Schedule A” list of professions which are exempt from the labor certification process, intended to protect U.S. workers.

USCIS also intends to finalize a rule to “modernize” the H-2A (agriculture) and H-2B (temporary, non-agriculture) visa programs. According to the Society for Human Resource Management, the proposal includes “new whistleblower protections; additional penalties for employers that charge workers prohibited fees; expanded grace periods for workers who lose employment; permanent portability for workers to move between employers; and the ability for workers to seek green cards (permanent residency) while maintaining H-2 status.”

Finally, USCIS is considering a new regulation to expand eligibility for cancellation of removal. Under the law, aliens may seek cancellation of removal from an immigration judge after establishing: (1) continuous physical presence in the U.S. for more than 10 years; (2) good moral character; (3) no convictions for certain offenses; (4) and that the removal “would result in exceptional and extremely unusual hardship” to a spouse, parent, or child (who is a United States citizen or lawful permanent resident). Once a judge cancels the removal of an alien, the judge may then grant the alien legal permanent residence (i.e. a green card).

According to the new regulatory agenda, USCIS is currently working with the Department of Justice (DOJ) on a new regulation that will allow illegal aliens to apply for cancellation of removal without first being placed in court proceedings. As noted by FAIR, even though this move appears to contradict the direct meaning of the statute, open-borders advocates have long pushed for President Biden and Secretary Mayorkas for this change as it allows an illegal alien to gain amnesty without the risk of being removed.

U.S. Immigration and Customs Enforcement (ICE)

While Immigration and Customs Enforcement has the fewest regulatory actions on the Unified Agenda (with just four regulations), the agency is considering major changes to the rules for immigration detention, changes to fees for applicants who seek a stay of removal, and amendments to the accreditation requirements for foreign students who enroll in English language training programs.

Most notably of these, ICE is planning a massive joint rule with the Department of Justice to “clarify” the scope and applicability of section 236(a) of the Immigration and Nationality Act. Section 236(a) permits an immigration officer to determine whether an alien who has been arrested (and not subject to mandatory detention under the law) should be placed into custody, released on bond, or released on their own recognizance. As ICE detention beds were frequently left unused during the past three and a half years, and the Biden Administration has repeatedly proposed cutting the overall number of detention beds, it is unlikely that any changes DHS makes regarding the interpretation of Section 236(a) will improve the process for detaining and removing aliens.

As the Biden-Harris Administration seeks to close out its first term, it will be working overtime to finalize regulations and have them implemented by year’s end. It’s unfortunate that the administration’s priorities are out of step with the American people, and that it is not proposing regulatory actions that protect national security, punish sanctuary policies, reduce asylum fraud, end parole abuse, and better protect U.S. workers. FAIR will be monitoring future executive actions, providing input on regulations, and analyzing the impacts of their policies on future generations.

The full Unified Agenda of the Department of Homeland Security can be found online by clicking here.