Elizabeth Jacobs is the director of regulatory affairs and policy at the Center for Immigration Studies.
As we enter the fourth year of the Biden administration, CIS expects immigration policy-makers to continue their aggressive regulatory agenda. Discussed below are the regulatory changes that the Biden administration has indicated it intends to make in 2024 related to the Department of Homeland Security (DHS), Department of Justice (DOJ), Department of Labor (DOL), and Department of Health and Human Services (HHS). These departments all have jurisdiction over issues that impact immigration policy in the United States.
1. Asylum Eligibility
Under the direction of a January 2021 executive order, policymakers in DHS and DOJ have been working on a joint regulation to define key terms pertinent to asylum eligibility. Specifically, the rule will define “membership in a particular social group” (PSG; one of the five protected grounds of persecution required for eligibility to receive protection under the asylum laws). The rule will also interpret various other elements of eligibility for asylum, including some that are often determinative in PSG claims, such as the requirements that an applicant establish that the government was “unwilling or unable” to protect the applicant against the alleged harm, and determinations about whether persecution is “on account of” a protected ground, or driven by a reason that is not covered by asylum, such as general violence. Currently, the interpretations of these terms are determined by case law and may vary depending on which federal circuit’s law is being applied.
While the deadline imposed by the executive order (270 days) has long passed, both DHS and DOJ have indicated in the Unified Agenda of Regulatory and Deregulatory Actions (a report issued by the Office of Information and Regulatory Affairs, a subdivision of the Office of Management and Budget) that publishing the rule continues to be a priority for the administration in 2024.
Why Does This Matter? This regulation has potential to further expand asylum-related loopholes and undermine border security efforts by encouraging additional illegal immigration to the United States by, for instance, expanding the definition of “membership in a particular social group” to encompass many more people.
2. Public Health-Related Border Rules
DHS has indicated that it plans to replace the Trump administration’s pandemic-inspired border rule (titled Security Bars and Processing) with a public health policy of its own. The Security Bars and Processing rule amended asylum and withholding of removal regulations to clarify that the “danger to the security of the United States” statutory bar to eligibility for asylum and withholding of removal encompasses certain emergency public health concerns. The rule, which was finalized on December 23, 2020, is still in place but has never gone into effect. The effective date has been repeatedly delayed; as of December 28, 2022, the rule’s effective date was delayed until December 31, 2024. We predict that, in 2024, the Biden administration will modify the regulation (perhaps, for example, by eliminating the requirement that asylum officers screen for public health concerns during credible fear interviews), but maintain certain elements of the original policy.
Why Does This Matter? Interpreting this bar to asylum and withholding of removal eligibility to encompass certain emergency public health concerns — such as spread of contagious disease — may provide DHS with a tool to manage the border during a public health crisis similar to the Center for Disease Control and Prevention (CDC)’s Title 42 public health order issued in March 2020.
3. Citizenship and Naturalization
DHS has indicated that it plans to amend its regulations governing the citizenship and naturalization process. DHS indicated that its proposal would include clarifying the naturalization test requirements, “updating” eligibility requirements, and proposing amendments to clarify definitions pertinent to naturalization eligibility. This proposal also will likely alter DHS’s policies regarding what is required to receive a waiver of inadmissibility or to adjust status from that of a nonimmigrant to a lawful permanent resident (green card holder).
Why Does This Matter? Given the weight that the Biden administration has given since 2021 to its priority to increase naturalizations, this proposal, if finalized, will likely expand the number of people who are eligible to naturalize in the United States.
4. Custody Determination and Detention Procedures
DHS, including U.S. Immigration and Customs Enforcement (ICE), and DOJ’s Executive Office for Immigration Review, have indicated that they plan to amend regulations that govern the detention and release determinations of aliens subject to discretionary detention under section 236 of the Immigration and Nationality Act (INA). The government noted that “the goal of the proposed regulation would be to clarify the scope and applicability of section 236(a) of the INA and the procedures that apply under that section, including the burden and standard of proof for continued detention” at custody determinations.
To accomplish this, DHS says the proposed rule will amend regulations governing ICE initial custody decisions and immigration judge bond hearings for aliens subject to discretionary detention. Under section 236(a) of the INA, however, Congress granted ICE broad discretion to detain an alien who is in removal proceedings. This grant of discretionary authority is separate from the provisions of the INA that require ICE to detain recent arrivals who have been placed in expedited removal proceedings, aliens convicted of certain serious crimes pending completion of their removal proceedings, or aliens who have already been ordered removed.
Why Does This Matter? Given the Biden administration’s general refusal to detain aliens subject to mandatory detention, this rulemaking can be expected to codify restrictions into regulation on ICE officers’ statutory authority to detain aliens who are in removal proceedings. It can also be expected to add administrative deterrents — in the form of more paperwork — to the enforcement process and invite legal challenges from aliens or their representatives who will claim that ICE has not met its burden in establishing that detention is permissible under the rule’s new standard of proof.
5. Labor Certification for the Permanent Employment of Foreign Workers
DOL’s Employment and Training Administration (ETA) is considering updating Schedule A of the permanent labor certification process. This type of rulemaking will impact the process required for a person to immigrate to the United States on an employment basis in science, technology, engineering, and mathematics (STEM) occupations. Employers who wish to hire aliens for a Schedule A occupation are not required to conduct a test of the labor market and apply for a permanent labor certification with DOL.
To prepare for this endeavor, ETA will be issuing a Request for Information (RFI) so that the public may provide input on whether Schedule A serves as an effective tool for addressing current labor shortages, and how DOL may create a “timely, coherent, and transparent methodology” for identifying STEM occupations that are experiencing labor shortages. The government said that information received from the public “will help inform decisions regarding how to improve Schedule A and ensure that its purpose is met”, including in keeping with its requirements under the INA to ensure the employment of foreign nationals does not displace U.S. workers or adversely affect their wages and working conditions.
After ETA considers the responses it receives from the public, it may issue a Notice of Proposed Rulemaking (NPRM) to provide details to the public on any changes it is considering codifying. At that point, the public will have another opportunity to comment on any specific policy change proposed by the agency.
Why Does This Matter? Changes the rules regarding which occupations may be considered “Schedule A” occupations may dramatically impact the domestic labor market, decreasing or (more likely) increasing unfair labor competition that Congress expressly sought to prohibit.
6. Increasing Flexibilities for H-2A Temporary Agricultural Workers
DOL’s ETA Wage and Hour Division has indicated that it will propose amendments to the regulations governing the H-2A nonimmigrant visa program aimed at “improving working conditions and protections for workers engaged in temporary agricultural employment in the United States”. DOL notes that the rule is also designed to “strengthen protections in the recruitment, job order clearance, and oversight processes”.
The H-2A nonimmigrant visa program allows agricultural employers to petition for foreign workers to be admitted to the Untied States temporarily to perform agricultural labor or services of a temporary or seasonal nature so long as there are not sufficient able, willing, and qualified U.S. workers to perform the work. Congress created the H-2A program with the intent that the employment of H-2A workers not adversely affect the wages and working conditions of similarly employed workers in the United States — but numerous reports have shown that the program has not lived up to that promise.
Why Does This Matter? The use of the H-2A program has grown substantially in recent years. With its rulemaking authority, DOL has an opportunity to strengthen protections for both U.S. and foreign agricultural workers by requiring employers to pay workers higher wages, restricting law-violators’ ability to petition for foreign workers, and expanding enforcement efforts.
7. Further Expansion of Humanitarian Benefits
Finally, CIS expects DHS to amend regulations governing immigration benefits created by the Violence Against Women Act of 1994 and subsequent legislation. This legislation authorizes the grant of U Visas; T visas; “battered spouse waivers,” which allow victims of domestic violence who have conditional permanent residency status as a result of filing an application for a marriage-based green card to apply to remove the “conditional” status without the assistance of their spouses and without having to remain in the relationship that is the basis for their green card application; and “self petitioning” for lawful permanent residence (green card) status to aliens who have been victims of certain crimes or abuse without the cooperation of their spouse or parent, putting beneficiaries on a path to citizenship. The Biden administration has already created a new program to offer deferred action to aliens who have submitted applications for U visas (but has not received a final decision) to receive work authorization in advance of a decision.
Why Does This Matter? While the specifics of the upcoming rule have not been made public, USCIS is likely propose to both increase the number of aliens who may be eligible for such benefits and expand the availability of work authorization to applicants, even before a final decision is rendered by the agency.
Additionally, while the aims of these immigration benefits are noble, the programs have been subject to significant fraud and abuse. For instance, the Government Accountability Office reported that between fiscal years 2014-2019, the Violence Against Women Act self-petition program grew by over 70 percent while the number of petitions referred for potential fraud increased by an astounding 305 percent. Additionally, in 2022, the DHS Office of Inspector General reported that the U Visa program was susceptible to fraud and that the limited audit conducted by DHS OIG uncovered numerous instances of “forged, unauthorized, altered or suspicious law enforcement certifications”. DHS OIG concluded that USCIS did not adequately manage the program “to ensure the program met its intended purpose” or “address U visa program fraud risks”. A new regulation would provide the agency with a new opportunity to address or exacerbate the exploitation of these programs.
Proposals that May Be Finalized in 2024
We can expect DHS to finalize U.S. Citizenship and Immigration Services (USCIS)’s fee schedule before tax season is over. USCIS last adjusted its fees back in 2016, despite finalizing a new fee schedule in 2020, undergoing serious fiscal challenges following the Covid-19 pandemic and ongoing border crisis, and being required to engage in a review of its financial health every two years in order to update the agency’s fees accordingly. (Back in August, I wrote about how DHS’s delay in updating USCIS’s fee schedule has exacerbated USCIS’s financial troubles.)
Rather than increasing fees proportionally across the immigration system to cover the agency’s costs, the Biden administration proposed in 2023 to instead adopt an “ability to pay” fee model (as opposed to a “beneficiary pays” model, where beneficiaries pay for the actual cost of their services) to transfer the cost of its growing humanitarian docket to U.S. employers while suppressing fee increases for many other case types, including naturalizations, in order to align itself with the administration’s political priorities.
Additionally, the federal government issued several Notices of Proposed Rulemaking (NPRMs) in 2023 impacting immigration policy that may be finalized during the 2024 calendar year. These included:
- A rule by HHS that would have amended the regulatory definition of “lawfully present” as it pertains to Patient Protection and Affordable Care Act (ACA) benefit eligibility to include Deferred Action for Childhood Arrival (DACA) recipients;
- Updates to the H-1B program (which may expand the types of employers who may receive H-1B workers who are not subject to the annual cap and revised the registration process to eliminate certain types of H-1B fraud);
- A partial (and inadequate) codification of the 1997 Flores Settlement Agreement into regulation to govern the transfer and care of unaccompanied alien children (UACs) by the HHS Office of Refugee Resettlement;
- A proposal by DOJ to expand immigration judges’ authority to administratively close, terminate, or dismiss cases in removal proceedings; and
- Amendments to the regulations governing H-2 nonimmigrant workers.
Finally, DHS could finalize an interim final rule (IFR) issued in 2022 that amended the credible fear process to allow USCIS asylum officers to make final asylum decisions rather than transferring cases to the immigration courts for an immigration judge to decide. IFRs are regulations that are allowed to go immediately into effect because of “good cause”, but are not final until an agency responds to the comments it receives on the policy from the public. In December, my colleague Andrew Arthur explained how this policy has nearly tripled grants for asylum in just 19 months.