In Waning Days, the Biden Administration Pushes Through Immigration Regulations

FAIR Take | December 2024
Over the last few weeks, a flurry of new immigration rules and regulations have been released by the Biden administration, just as it prepares to walk out the door. From changing the asylum process to changing guestworker programs, bureaucrats and political appointees have been busy trying to make their mark before a new boss arrives. Below is an overview of some of the recent announcements that impact our nation’s borders, American workers, and unaccompanied alien children.
H-1B “Specialty Occupation” Visa Changes
The Department of Homeland Security (DHS) last week announced an expansive regulation to change the H-1B high-skilled visa program. FAIR provided comment on the rule when DHS initially proposed it in October 2023, saying it will hurt American workers, encourage more fraud, and undermine the integrity of the program.
The final rule makes several changes in the name of “streamlining” the H-1B process, relaxing requirements on aliens working in the U.S. and the employers who hire them. First, it allows adjudicators to rubber-stamp an H-1B petition using a practice known as “deference,” or presuming one is eligible for an immigration benefit simply because it was previously approved. The Trump Administration, in 2017, attempted to rein in the practice of granting deference and expressly required agency officials review each application on its facts.
Second, the rule provides that if an H-1B worker is placed at a third-party site, then it is the third party – not the employer requesting the H-1B – who is responsible for determining whether the work being performed qualifies under “specialty occupation.” This change makes it easier and more palatable for employers to outsource their workers to staffing firms and not be responsible for the foreign worker, which was not the intent of the H-1B program.
Third, the final rule authorizes an automatic extension of a student’s F-1 visa if the student wants to obtain an H-1B visa and work in the United States. Known as a “cap-gap extension,” this new rule provides an automatic bridge for students to remain in the U.S. until they have a job, which may not start until later in the year. Rather applying for an extension, it becomes automatic.
Finally, the final rule eliminates the existing requirement that employers provide the government with an itinerary that lists the dates and locations of the foreign worker’s training, relaxing oversight and fraud deterrence in the program.
Unfortunately, the new H-1B rule, which goes into effect on January 17, 2025, does not address the H-1B visa fraud and abuse schemes that have plagued the program for years, undermining its original intent. Instead, it is an attempt to cut corners under the guise of efficiency, capitulating to big business and ignoring American workers at home who must compete for high-skilled job opportunities.
Temporary Agriculture (H-2A) and Non-Agricultural (H-2B) Visa Changes
On December 18, the Department of Homeland Security finalized a new regulation that makes changes to two low-skilled guestworker programs: the H-2A agricultural guest worker program and the H-2B seasonal worker program. To protect workers, the final rule prohibits employers from passing on employer fees to the applying guest workers. Additionally, the rule authorizes DHS to provide H-2A and H-2B workers with whistleblower protection to protect aliens who report abuses or program violations. The rule also allows more time for guest workers to enter the U.S. before their job begins or to remain in the country in good standing after their visa expires. In particular, it increases the grace period for workers after their visa expires – from 30 to 60 days – in various instances, in order to maintain good legal standing (and indirectly helping them find additional work).
Finally, the rule provides H-2A and H-2B workers “portability,” or the ability to change employers, “regardless of a porting petitioner’s E-Verify standing.” In effect, this provision supersedes a rule from 2008 that allowed foreign workers to begin work with a new employer, before being approved, so long as the business was in good standing with E-Verify, the government’s electronic employment verification system. When initially proposed, some commenters expressed concern that “workers would be encouraged to violate the terms of their contracts with employers.” DHS said they disagreed with the concerns and that “worker mobility is important to improving the ability of workers to leave an abusive employer without fearing retaliation.”
The final rule will go into effect on January 17, 2025.
Mandatory Bars to Asylum
On December 18, the Biden Administration published a final rule that allows the government to more quickly reject asylum-seekers who are national security or public safety threats. While the proposed changes are, in concept, based on rules instituted by the Trump administration, the Biden Administration’s rule is narrow in scope, contains numerous loopholes, and does little to stem the tide of asylum fraud that plagues the system. The rule, which goes into effect January 17, 2025, allows asylum officers to deny asylum during a credible fear interview (not at the asylum interview or in a court proceeding) based on a list of congressionally mandated bars on asylum. However, that authority is limited.
FAIR provided comments to the Biden administration about how the rule contains several loopholes. We explained that the rule is weak because it does not require officers to consider the mandatory bars, they are merely authorized to do so. And if the asylum officers do consider the mandatory bars, the rule does not allow them to consider all the statutory bars to asylum during the credible fear hearing (such as whether the alien has firmly resettled in another country before entering the U.S.). Finally, the rule will apply to only a fraction of illegal aliens, that is, those subject to expedited removal. While placing illegal border-crossers into the expedited removal process – which requires their detention and bypasses the immigration courts – used to be the norm, that is no longer the case.
Even though the final rule is weak, it is, however, an acknowledgment that the administration’s open-borders policies have increased the risk to public safety and national security. In just the last year, FBI Director Christopher Wray has repeatedly expressed concern over the lack of border security and terror threats, and reports have surfaced that DHS has released multiple terror suspects into the country.
Oversight of Facilities that House Unaccompanied Alien Children
On November 27, the Office of Refugee Resettlement (ORR), which is responsible for the day-to-day care of unaccompanied alien children (UACs) published a regulation related to the investigations of alleged child abuse and neglect. ORR, which did not go through the regular Notice and Comment Rulemaking process, says the rule is needed because some states (Texas, Florida, and South Carolina) have stopped licensing facilities in their states that contract with the federal government to house unaccompanied children.
The new rule from ORR describes how the federal government will investigate allegations of child abuse in their contract-owned facilities, including setting up a review and appeals process. It also establishes a registry for individuals who are found to have abused unaccompanied alien children in these facilities and prohibits them from working or volunteering in other ORR facilities or on ORR-funded grants. As of December 6, 2024, ORR was caring for 6,310 unaccompanied alien children in government-contracted facilities. The rule will go into effect on December 27.
In addition to issuing the regulation, ORR recently took steps to officially establish the Office of the Ombudsman. ORR originally proposed creating the office in October 2023. On December 11, however, ORR published a Federal Register Notice that solidifies the office’s mission, function and organizational structure. FAIR opposed the creation of the office when it was announced, calling it “a new, unregulated office” with “no legal basis” that will require taxpayers to manage and maintain.
We can expect the Biden-Harris administration to continue pushing out new rules, policies, and procedures as they begin to close out their failed tenure, and FAIR will continue to monitor and provide updates as they do.
Support from readers like you is crucial in funding FAIR’s operations. Please consider making a difference with a tax-deductible contribution and join our efforts in educating the public on sensible immigration reform.