The Biden-Harris administration last month published its most recent semiannual issue of the “Unified Agenda of Federal Regulatory and Deregulatory Actions”. The Unified Agenda is a summary of each executive agency’s projected regulations, existing regulations, and completed regulations. It is intended to provide the public with information about the government’s regulatory and deregulatory activity — in part to provide the public with opportunities to participate in the rulemaking process.
Unlike inconsistent campaign rhetoric, the Unified Agenda can provide voters with a clear picture of the reforms and policies a potential future Harris administration will implement. Here is what we can expect to be proposed or finalized during a Harris-Walz administration.
The Biden-Harris administration has kept regulatory amendments for the U nonimmigrant visa program on its agenda for nearly the entirety of its term, but has yet to issue a proposal to amend the program. U visas are given to victims or witnesses of qualifying crimes, and their eligible family members, who are, have been, or are likely to be helpful in the investigation or prosecution of those crimes. U.S. immigration law allows U visa holders to obtain green cards after three years of continuous presence in the United States, making the program a pathway to citizenship.
While a new regulation may expand the class of aliens who are eligible for U visas, Congress capped U visa issuances at 10,000 a year. Accordingly, the new regulation will likely also codify the Biden administration’s practice of providing applicants immigration benefits, such as work authorization, long before their application is adjudicated by the agency. The Unified Agenda indicates that a Notice of Proposed Rulemaking (NPRM) — or regulatory proposal — will be published by the end of the calendar year, meaning that, unless the rule is fast-tracked in January, it will be up to Harris-Walz to finalize the new policies.
The U.S. Department of Homeland Security (DHS) and the U.S. Department of Justice (DOJ) are also considering amending the cancellation of removal process via regulatory changes. Cancellation of removal allows certain removable aliens to obtain green cards. To be eligible, a removable alien must demonstrate “good moral character”, demonstrate that a qualifying family member would face exceptional and extremely unusual hardship if the alien were deported, and have lived in the United States for at least 10 years without being placed in removal proceedings, among other eligibility requirements. Because the departments are only in the early stages of that process, Harris would most likely need to take power for these changes to be finalized.
The Unified Agenda indicates that the agencies are considering reforms that may allow removable aliens to apply for cancellation of removal without being placed in standard Section 240 removal proceedings. Additionally, because cancellation of removal grants are capped at 4,000 a year, a potential regulation could provide applicants with benefits, such as work authorization, before the adjudication of their application. A process change of this type would most likely require applicants to request cancellation of removal with U.S. Citizenship and Immigration Services (USCIS), the agency charged with administering the legal immigration system. This would allow USCIS immigration officers, rather than immigration judges contending with U.S. Immigration and Customs Enforcement (ICE) prosecutors, to make final decisions on cancellation of removal requests.
- We can also expect ICE, under a Harris-Walz administration, to finalize a joint rule with DOJ that will “clarify” the scope and applicability of section 236(a) of the Immigration and Nationality Act (INA) . This section authorizes an immigration officer to determine whether an alien who is arrested should be placed into custody, released on bond, or released on their own recognizance. Given the current administration’s commitment to restricting immigration enforcement and reducing immigration detention overall, the proposal is likely to further restrict ICE officers’ ability to detain and remove aliens from the United States.
- DHS indicated that it also intends to amend its regulations to allow USCIS immigration or refugee officers the discretion to waive refugee applicants’ requirements for in-person interviews. Current regulations at 8 C.F.R. § 207.2(a) require immigration officers to interview all refugee applicants over the age of 14, in person, under oath. DHS, however, has not yet published language for this proposal. Accordingly, unless this reform is fast-tracked over the next three months, final implementation would require sign-on by an incoming Harris-Walz administration.
- A Harris-Walz administration would also likely finalize a regulation weakening the “persecutor bar” to refugee, asylum, and withholding of removal eligibility. The “persecutor bar” forecloses eligibility from an alien who “ordered, incited, assisted, or otherwise participated in the persecution” of any person on account of “race, religion, nationality, membership in a particular social group, or political opinion”. The regulation will likely require asylum officers to consider whether an applicant’s assistance or participation in persecution was the product of coercion or duress, and if so, may exempt the applicant from its application.
A potential Harris-Walz administration will likely also oversee the finalization of a forthcoming proposal that will restrict U.S. Customs and Border Protection (CBP) discretion to enforce immigration law under the guise of family unification. The Unified Agenda described this potential regulation as “promoting family unity principles” by defining what constitutes a “separation of a family encountered at the U.S. border or ports of entry,” limiting the circumstances in which DHS may separate parents or legal guardians from their minor children and establishing when DHS “must facilitate a separated family’s reunification”.
The reforms, on their face, appear morally compulsory. However, given that DHS’s clarification that the rule would codify into regulation recent, overbroad judicial orders, immigration experts have serious concerns that such a rule could undermine CBP’s ability to intercept cases of human trafficking and create even more pull factors for potential migrants to smuggle children with them into the United States.
In 2025, we can expect a Harris administration to propose a new rule to expand work authorization eligibility to spouses of additional classes of nonimmigrants whose spouses Congress has not authorized to work in the United States by statute; increase “flexibilities” for certain nonimmigrant workers, including those who resign or are terminated from the employment that was the basis of their admission; and make other amendments to the procedures for obtaining Employment Authorization Documents (EADs or “work permits”).
DHS’s timetable estimates that this proposal will be first published in January 2025. Given that federal law, absent exceptional circumstances, requires the government to provide the public with sufficient time (typically at least 30 or 60 days) to comment on proposed regulation and requires the federal government to respond to all relevant comments submitted, the rule is unlikely to go into effect while Biden is president.
We should also expect the Biden-Harris administration, by the end of the year, to finalize additional regulatory changes to the H-1B specialty occupation nonimmigrant visa program. The Biden-Harris administration already issued a final rule in February 2024 to address issues related to duplicate H-1B registration filings, an issue that has allowed some bad-acting employers to conspire with each other to game the lottery system. However, the semiannual update to the United Agenda shows that the Biden-Harris administration is not done with its overhaul of the H-1B nonimmigrant visa program.
DHS is likely to include provisions broadening the definition of “specialty occupation” and “employer-employee relationship” to both increase the types of occupations that may qualify for the H-1B program and allow more workers to receive visas, even if they have ownership interests in the petitioning company; expanding the types of employers who are exempt from the H-1B cap; increasing flexibilities with regard to employee start days; and extending the amount of time certain F-1 visa holders can extend their stay in the United States to work under the Optional Practical Training (OPT) program after they graduate. Mass-immigration advocates sometimes refer to this as addressing the “cap-gap” issues (i.e., the requirement that graduates working in OPT have a gap between their authorized period of stay under an F-1 visa and an H-1B visa).
The public, however, will not have another opportunity to comment on these proposed regulatory changes. These changes were included in DHS’s October 23, 2023, NPRM. Although DHS published a final rule to amend the selection process for H-1B registrations, the department clarified that it is continuing to consider the public comments submitted on these other aspects of the 2023 NPRM. If the rule is not finalized by the end of calendar year 2024, the public should expect a future Harris administration to finalize the project.
In addition to changes to H-1B policy, a Harris-Walz administration would likely finalize reforms proposed by the Biden-Harris administration related to low-skill nonimmigrant work visa categories, including the H-2A and H-2B nonimmigrant visa programs. The Biden-Harris administration issued an NPRM to “increase flexibilities” for workers participating in both programs in September 2023. As we now know, however, “increase flexibilities” has become a coded way of saying that the changes would allow workers to remain in the United States longer than their periods of employment and allow workers to move to new jobs while they are in the country.
The rule, while sold as an attempt to protect these more vulnerable workers from employer exploitation and abuse, failed to include common-sense measures to ensure foreign workers are not exploited, impose real consequences on employers who are found to abuse the visa programs, or protect U.S. workers from unfair competition. CIS submitted a public comment in 2023 urging DHS to include stronger protections for both American and foreign workers in the final product.
- If Harris takes office in January 2025, DHS will likely also amend its regulations governing employment-based immigrant petitions in the first,1 second,2 and third3 preference classifications. While DHS has not provided the public with specific language or clear explanations of the exact proposals that will be put forth, we expect this proposal to expand eligibility for “aliens of extraordinary ability” and “outstanding professors and researchers” by redefining these statutory terms, and possibly weakening existing standards; impact “successorship-in-interest” and ability-to-pay rules, which allow successor companies (or companies that obtain sufficient interest in an employer through merger, purchase, change in corporate structure, or change in ownership) to assume the predecessor’s prior immigrant benefits requests and require petitioning employers to demonstrate that they are able to pay a foreign worker their proffered wages; and impact the evidentiary requirements for first preference classifications, second preference national interest waivers, and physicians of national and international renown. Given the Biden-Harris administration’s commitment to “removing barriers” to naturalization and other immigration benefits, CIS expects these standards to be weakened, rather than strengthened for the simple purpose of increasing the number of approvable filings.
Conclusion
Any change in a presidential administration can have a substantial impact on the policies and regulations that are put in play — and this is especially true in the contentious context of immigration policy. Because Vice President and presidential candidate Harris has effectively signed off on the Biden administration’s immigration strategy, the Unified Agenda should be viewed as her “Project 2025”. What the Unified Agenda shows is that a potential Harris-Walz administration will likely continue to impose barriers to immigration enforcement and weaken standards of the legal immigration system in favor of increasing the overall number of foreign-born individuals in the United States.
Equally important, the Unified Agenda omits common-sense reforms — such as raising the wage rates that employers must pay foreign workers — that would serve the interests of American workers and foreign workers alike, or that would strengthen border and national security.
Moreover, the Unified Agenda does not show you the Biden-Harris administration’s unwavering commitment to authorizing the entry of hundreds of thousands of inadmissible aliens annually through an abusive interpretation of the parole statute because the administration has not engaged in the rulemaking process for these major policy changes. Aside from the serious legal concerns imbedded in the substance of the Biden-Harris administration’s numerous new parole programs, these programs have diverted limited resources from the severely backlogged legal immigration system to create a secondary (unauthorized) immigration system compromised of entirely inadmissible aliens. Harris, while campaigning, has not once disavowed any of these programs.
End Notes
1 In the Employment First Preference category, aliens with “extraordinary ability” in the sciences, arts, education, business, or athletics, or applicants with sustained national or international acclaim and recognition in their fields, outstanding professors and researchers with at least three years of experience in teaching or research who are recognized internationally, and multinational managers or executives may be eligible for green cards.
2 In the Employment Second Preference category, aliens holding an advanced degree or a baccalaureate degree and at least five years progressive experience in a profession and aliens with exceptional ability in the sciences, arts, or business may be eligible for a green card. Exceptional ability means having a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.
3 In the Employment Third Preference category, skilled workers whose jobs require a minimum of two years of training or work experience, professionals whose jobs require at least a baccalaureate degree from a U.S. university or college or its foreign equivalent, or “unskilled workers” or workers who are capable of filling positions that require less than two years training or experience may be eligible to receive green cards.