President Trump sought to change the immigration system mainly by signing into law Executive Orders, which means that the next administration can also just as easily rescind them.
Currently there are two main Presidential Proclamations:
1. Presidential Proclamation 10014 and 10052, “Suspending Entry of Immigrants and Nonimmigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak." (85 FR 23441, 4/27/20) (85 FR 38263, 6/25/20) are set to expire on December 31. It is very likely that President Trump will extend these Proclamations; requiring the new Administration to affirmatively rescind them.
2. Executive Order Limiting Birthright Citizenship. Various news agencies have reported that this order is expected, even though it is highly suspect to legal challenge.
It will be difficult to rescind regulatory actions that have resulted in a final rule. Regulatory actions are processed through the Administrative Procedure Act and usually require the publication of a proposed change in the law and a time for comment. These laws cannot be rescinded through Presidential action but rather they must be set aside by a court order or by special congressional review. The Trump administration has enacted many final rules with others pending final review before publication and others still under public notice and comment. A list of the Trump Policies, published by the American Immigration Lawyers’ Association, that may be finalized before Inauguration Day 2020, follows.
The Trump administration will seek to publish as many final regulations as possible before January 20th to make longer-lasting policy changes. The ability to finalize regulations will be very dependent on what phase the specific action is in the regulatory drafting and review process and how high of a priority it is for the Administration. There are four different type of regulations: regulations that are pending review at the Office of Information and Regulatory Affairs (OIRA) for publication as final rules, proposed regulations where the comment periods have closed and final rules are being drafted, proposed regulations that were published but the comment period remains open, and proposed Regulations that are pending OIRA review.
1. Regulations that are pending review at the Office of Information and Regulatory Affairs (OIRA) for publication as final rules. This means that a rule has already been issued as a proposed rule, comments have been received, and a final rule has been drafted, or the rule is being issued as a straight final rule. OIRA review can take a few months, but in the recent past it has been expedited to be concluded in 30 days or has been waived entirely. These rules are the closest to being finalized and published.
• Joint DHS/DOJ Procedures for Asylum and Withholding Final Rule; Credible Fear and Reasonable Fear Interviews. 85 FR 36264, 6/15/20; (Received by OIRA on 10/29/20).
• DOJ/EOIR Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure Final Rule 85 FR 52491, 8/26/20 (Received 11/10/20).
• Security Bars and Processing due to COVID-19 Final Rule related to asylum applicants traveling through Mexico (and possibly Canada) – (Received by OIRA on 10/16/20 – was not previously published as a proposed rule), RIN # 1615-AC60.
• EOIR Final Fee Rule (Received by OIRA on 6/23/20)
• DHS Special Immigrant Juvenile Petitions Final Rule (Received by OIRA on 10/13/20)
• Implementation of the Electronic System for Travel Authorization (ESTA) at U.S. Land Borders Interim Final Rule (completed OIRA Review on 11/10/2020; but withdrawn).
2. Proposed regulations where the comment periods have closed and final rules are being drafted. The ability to finalize these rules will be dependent on how many comments they have received. Typically, it takes months to review all comments, respond and draft a final rule, and have it cleared through agency, department and OIRA review. However, the administration may have things already in motion to finalize it, especially if they do not intend to make any policy changes based on comments.
• DHS/DOJ Proposed Rule on Security Bars and Processing, 85 FR 41201, 7/9/20; (Comment period closed on 8/10/20; 5,081 comments received).
• DHS/USCIS Proposed Rule on the Use and Collection of Biometrics, 85 FR 56338, 9/11/20. (Comment period closed on 10/13/20; 5,338 comments received).
• DHS/ICE Elimination of Duration of Status Rule; 85 FR 60526, 9/25/20; (Comment period closed on 10/26/20; 32,083 comments received).
• DOJ/EOIR Professional Conduct for Practitioners—Rules and Procedures, and Representation and Appearances; 85 FR 61640, 9/30/20; (Comment period closed on 10/30/20; 41 comments received).
• DOJ/EOIR Proposed Rule on Procedures for Asylum and Withholding Rule; 85 FR 58692, 9/23/20; (comments closed on 10/23; 2,039 comments received)
• DHS/USCIS Affidavit of Support Proposed Rule, 85 FR 62432, 10/2/20. (Comment period closed on 11/2/20; 326 comments received.)
3. Proposed regulations that were published but the comment period remains open. These rules will be even harder to finalize as all comments have not yet been received. The agency will need to review and respond to the comments, draft, and clear the final rule at agency and department level, as well as OIRA. To help slow down the finalization of rules, it is important for the public to submit as many unique comments as possible.
• DHS/USCIS H-1B Lottery Proposed Rule – 85 FR 69236, 11/2/20; (Comment period closes on 12/2/20). Submit a comment here.
• DOS NPRM Eliminating B-1 in lieu of H-1B - 85 FR 66878, 10/21/20; (Comment period closes on 12/21/2020).
• DHS/USCIS NPRM Elimination of Employment Authorization for individuals with Orders of Removal - 85 FR 74196, 11/19/20 (comment period closes on 12/21/20).
• DHS/CBP Proposed Rule Collection of Biometric Data from Aliens Upon Entry to and Departure from the United States - 85 FR 74162, 11/19/20 (comment period closes on 12/21/20).
• DOS Proposed Rule on Intercountry Adoptions, 85 FR 74492, 11/20/20 (comment period closes on 1/19/21).
4. Proposed Regulations that are pending OIRA review. These regulations will be nearly impossible to finalize by January 20, 2021 given the number of steps remaining.
• DHS/USCIS Proposed Rule on Provisional Waivers - sent to OIRA on 9/29/20.
• DHS/USCIS Proposed Rule Rescinding H-4 EADs – sent to OIRA on 2/20/19.
Furthermore, the Trump Administration can quickly finalize Policy Memos, Policy Manual Updates and Procedural Updates. Policy memos typically take effect immediately, even if the agency will accept comments after the fact. Unfortunately, the public does not have advance visibility in these types of publications. Policy memos that have been recently published include revisions to naturalization test, child status protection act application, use of discretion in adjustment of status adjudications, changes to naturalization adjudications, and AC21 job portability. If these types of documents are published in the final days, a new administration would have to issue a new policy memo to overturn that action.
Finally, several regulations and policy memos have already taken effect but are being challenged in court. Whether a new administration may more easily overturn these policies will be dependent on whether they have been set aside or enjoined by a court by Inauguration Day. For example, litigation is pending on the following:
• DHS and DOS Public Charge Rule
• Procedures for Asylum and Bars to Asylum Eligibility
• Asylum Application, Interview, and Employment Authorization for Applicants
• Third Country Transit Ban
• DACA memo
The incoming Biden Administration will be busy trying to undo the Trump Admnistration's regulations, policies and executive orders among several sectors including healthcare, economic and foreign policies, therefore, the much anticipated reprive in immigration law and policy will most probably take several months if not years.