Statutes of Liberty: Trump Admin Immigration Regulations Frozen

This sponsored column is by James Montana, Esq. and Doran Shemin, Esq., practicing attorneys at Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact James for an appointment.

In the fair city of Washington D.C., we have a semi-quadrennial tradition. After we vote the bums out, the bums spend their last weeks in office working to enshrine their political program via last-minute regulatory and personnel actions. It’s not the most picturesque tradition, but it’s ours.

The Trump administration did exactly this with respect to immigration law and policy. It promulgated all sorts of regulations concerning asylum, student visas and the H-1B program: Asylum applicants would have to show “extreme and severe” harm, students would have to renew their visas frequently, and H-1B petitions would be cherry-picked for the highest-paying jobs.

The Biden administration — like Mr. Freeze, the most delightfully awful Batman villain of all time — has put all of these changes on ice with a memorandum entitled The Regulatory Freeze Memorandum. In short, it says that all of these midnight rules are being sent to the cooler.

Here is the actual text. In paraphrase, it says:

• No new regulations may be sent for publication in the Federal Register until a Biden-appointed agency head says so.
• Regulations sent to the Federal Register but not yet published in the Federal Register shall not be published until a Biden-appointed agency head says so.
• Regulations sent to the Federal Register and published but with an effective date in the future will not become effective for at least 60 dates from Jan. 28, 2021.

What this means, in practice, is that recently proposed changes to the H-1B visa system, the asylum system and the immigration courts will be frozen until the Biden administration decides (probably) to withdraw them. All regulations, which were effective before Inauguration Day, will remain in force. It takes as much administrative paper-shuffling to repeal a regulation as it does to promulgate one, so the Trump administration’s approach to immigration questions will be with us for some time.

The Biden administration has announced, with great fanfare, that the Department of Justice will be ending contracts with private prisons. That’s all to the good, but we want our readers to notice the dog that isn’t barking: the Department of Homeland Security, which holds the lion’s share of private prison contracts, will be renewing its contracts with the very same contractors.

We enjoy answering questions about immigration from commenters. We also enjoy the oeuvre of Arnold Schwarzenegger. Ask us anything, and we’ll do our best to answer.