The Uniform Regulatory Agenda is out and we now have our first OFFICIAL confirmation that the Biden administration is planning to issue its first big asylum rule through an "interim final rule," without going through notice and comment.
reginfo.gov/public/do/eAge…
I'm going to do a thread on all of the immigration-related new regulations and proposals included in the Spring 2021 Uniform Regulatory Agenda, which previews an administration's plans to create new regulations.
Here is a link to the full agenda. reginfo.gov/public/do/eAge…
Continuing on the theme of asylum, here is the Biden administration's preview of a *separate* asylum rule, that would go through notice and comment rulemaking, to follow the February 2 executive order that called on DHS and DOJ to strengthen asylum protections by regulation.
The Biden administration will also formally "rescind or substantively revise" two Trump regulations aimed at restricting eligibility for work permits to asylum seekers.
One is already blocked in full and the other has been partially blocked in court.
reginfo.gov/public/do/eAge…
The Biden administration will also formally rescind three Trump regulations—all currently blocked in court—that would have made it almost impossible for people to seek asylum. This includes the infamous "death to asylum" regulation.
reginfo.gov/public/do/eAge…
Moving way from asylum, the Biden administration previewed a new "public charge" rule that will likely put the more favorable old standards into regulations. This will be an "Advance Notice of Proposed Rulemaking," meaning they'll ask for early comment. reginfo.gov/public/do/eAge…
The regulatory agenda shows that the Biden administration is currently targeting August for their new regulation that would "preserve and fortify" DACA, as promised in a day one EO.
There will be a notice and comment period after the rule is proposed.
reginfo.gov/public/do/eAge…
Confirming comments that Secretary Mayorkas made at yesterday's conversation at the AILA conference, USCIS will be proposing a new fee rule this fall that rescinds the block-in-court Trump fees and proposes new fees.
reginfo.gov/public/do/eAge…
The Biden administration is also going to propose its own "specialty occupation" H-1B rule, which will also address "F-1 students who are the beneficiaries of timely filed H-1B cap-subject petitions." More details in the abstract.
reginfo.gov/public/do/eAge…
The Biden administration will also publish a rule to implement the 2020 Emergency Stopgap USCIS Stabilization Act which expanded "premium processing" for USCIS benefits. The rule, which will be a final rule, will set the new fees.
reginfo.gov/public/do/eAge…
There is also a series of actions that the Biden administration will take to rescind or modify a number of Trump immigration regulations, such as:
- The DOL discretionary review rule
- The Asylum Ban 1.0 regulation
- The Asylum Ban 2.0 regulation
- The COVID Asylum Ban
The Biden administration says that it will formally withdraw the terrible proposed rule that would have ended "duration of status" admissions for student visas and that would have targeted students from many African countries with harsher visa rules.
reginfo.gov/public/do/eAge…
The Biden administration also seeks to move ICE into the 21st century by "allow[ing] delivery bond notifications requiring obligors to present noncitizens at ICE Offices or Immigration Courts to be issued electronically."
reginfo.gov/public/do/eAge…
Moving to the State Department, looks like there will be a State Department process similar to what USCIS did that asks for comments that "identify[] barriers that impede access to immigration benefits and fair, efficient adjudication of these benefits."
reginfo.gov/public/do/eAge…
Here's one of the more technical changes I've seen yet; the Biden administration proposes to make a technical amendment to an old State Department regulation that falsely suggests consular officers could grant Special Immigrant Juvenile Status.
reginfo.gov/public/do/eAge…
The Biden administration says that it will formally rescind the 2019 State Department "public charge" rule, given that "the 2019 [interim final rule] is based on a rule that is no longer the policy of the Department of Homeland Security."
reginfo.gov/public/do/eAge…
Here's a great new rule; the Biden administration will formally publish a "temporary final rule" that allows consulates to waive in-person appearances and oath requirements for "certain repeat immigrant visa applicants." That should help clear backlogs!
reginfo.gov/public/do/eAge…
On top of that temporary final rule on the waiver of in-person appearance at consulates, the Biden administration will also add a more permanent "limited exception to the general requirement that an immigrant visa applicant appear in person."
reginfo.gov/public/do/eAge…
There are also two new planned Notices of Proposed Rulemaking on exchange visitors, entitled "Records" and "Sanctions."
There is very little detail on what these rules would do.
Records: reginfo.gov/public/do/eAge…
Sanctions: reginfo.gov/public/do/eAge…
On to the immigration courts! There are multiple proposals to modify or rescind Trump-era rules, such as:
- The 15-day filing rule
- The rule expanding the EOIR Director's authority
- The "no admin closure" rule
- The EOIR fee rule
3 of 4 of these are blocked in court already.
The Biden administration will also reopen the comment period on two terrible midnight rules on motions to reopen and continuances that the Trump administration failed to get over the finish line. The goal will likely be to formally withdraw the rules after that.
The Biden administration will also "rescind or modify" the 2019 rule on safe third country agreements that the Trump administration used to send nearly 1,000 people to Guatemala before the pandemic led to the asylum cooperative agreement being suspended.
reginfo.gov/public/do/eAge…
The Biden administration will issue an interim final rule rearranging the organizational structure of the Office of Legal Access Programs inside EOIR "to better facilitate the agency's mission." OLAP oversees legal orientation programs. reginfo.gov/public/do/eAge…
And that's it for new rules! There are a few parallel EOIR asylum rules that I didn't include here because they are effectively repeats of the DHS rules.
There are some lingering Trump-era rules still in the pipeline, too. I expect those to eventually be quietly withdrawn.
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