Court Blocks Rule Intended to Eviscerate Right to Seek Asylum

Update:  On January 8, 2021, a federal court issued an injunction blocking the Trump administration’s most sweeping and extreme asylum rule discussed below from taking effect nationwide.

Even should the Trump administration appeal from the injunction before the new administration takes office, it’s possible the incoming Biden administration will move to dismiss the government’s appeal and choose not to defend the new rule.

On December 11, 2020, the Trump administration finalized proposed regulations, slated to take effect on January 11, 2021,  eviscerating the right of those fleeing persecution to have a fair chance to request asylum in the U.S. that Congress had guaranteed 40 years previously.

That law, the Refugee Act of 1980, codified the United State’s obligation to provide those who make it to the U.S. fearing harm or death in their home countries based on their race, religion, nationality, social group, or political opinion with a fair opportunity to seek asylum. The U.S. committed to this obligation in 1968 when it acceded to an international treaty crafted in response to the lessons of World War II.

Since 2017, the Trump administration has waged a virtual war against refugees and asylum seekers.   It has slashed refugee resettlement to the lowest levels since 1980, and raised unprecedented barriers to applying for asylum.  Those include forcing asylum seekers to choose between being reunited with their children or pursuing their asylum claims, compelling them to wait in dangerous conditions in Mexico for their hearings in U.S. immigration courts, using the pandemic as an excuse to not allow them to ask for asylum at all,  and other previously unheard of and draconian policies.

The new final rules continue the assault, both by categorically disqualifying certain grounds for seeking asylum, and by making people ineligible for asylum for reasons unrelated to their claims.  For example, the new rules would generally, with few or no exceptions, deny asylum to any asylum seeker:

  • who has a gender-based claim (including persecution for sexual orientation, gender identity, or domestic violence by actors the state is unwilling/unable to control);
  • who has a claim based on persecution by gangs, criminal organizations, guerillas, or terrorist groups;
  • who transited through more than one country on her/his way to the U.S.;
  • who spent more than 14 days in another country on her/his way to the U.S.;
  • who tried to enter, or entered the U.S. without permission;
  • who entered via the southern border and passed through another country on the way to the U.S.;
  • who lived in a third country for a year or more, even if the person had no possibility of staying legally in that country; and
  • who shows symptoms of, or has recently been exposed to someone with the symptoms of,  a communicable disease that has triggered a public health emergency (such as COVID-19), or who has come from or through a country where our government has determined that a communicable disease is “prevalent or epidemic.”

These are just a fraction of the extensive provisions that the new rules create to prevent asylum seekers from having  a fair chance to seek protection in the U.S.,  and that are completely contrary to the asylum rights created in statute by Congress.

The rules are all slated to take effect in January 2020.  Litigation challenging the new rules is already underway.

The rules are so extreme that it’s likely that the federal courts will block them from taking effect.   The Biden administration also could choose not to defend the new rules in court, or could decide not to appeal should the federal courts strike them down.   Should the new rules somehow survive court review, the new administration would have to go through formal rule making to reverse them, a process that could take at least a year.




Administration Finalizes Rule Undermining H-1B Program

On January 8, 2021, the administration finalized a proposed rule, making no changes, that will prioritize the processing of H-1B cap subject petitions based on how much the positions pay.

The administration received more than 1400 comments on the proposed rule by the December 2nd comment deadline, the vast majority (including MeBIC’s) in opposition for the reasons discussed here.   In hardly more than a month, the administration has finalized the rule, supposedly after giving due consideration to all of the comments received.  Instead, it appears that the administration gave undue importance to the few isolated comments supporting the rule, and glibly dismissed the multitude of comments opposing it.

Unless the federal courts enjoin the rule before then, it will take effect on March 9, 2021.  Although the Biden Administration can reverse the rule, it will have to go through the formal rulemaking process to do so, which will take months, if not a year.

Nearly 100,000 H-2B Positions for 2nd Half of FY 2021 Requested in Three Days

From January 1-3, 2021, the Office of Foreign Labor Certification (OFLC) received employer applications for 96,888 temporary, non-agricultural H-2B visa positions starting on or after April 1, 2021.

Employers’ requests far exceeded the 33,000 H-2B cap-subject visas available for the remainder of FY 2021.   The OFLC will use randomized selection to pick which employers’ applications it will process.

The FY 2021 appropriations bill enacted in December allows the administration to issue up to 69,320 additional H-2B visas for FY 2021.  Should the administration act quickly to release all of the additional visas, every employer who filed during the 72 hour filing window may have a chance of getting their needed temporary workers.  While over the past four years, the administration has released only a fraction of the additional visas that Congress allowed, it’s possible that the incoming Biden administration will release the maximum number.

Despite the pandemic and the resulting increase in unemployed Mainers, many Maine employers could not find enough U.S. workers to fill their seasonal jobs during 2020.   That trend was repeated nationwide, according to a recent analysis.

The Biden administration has signaled its willingness to work on rebuilding and reforming the U.S. immigration system.   It is past time for Congress to work in earnest to enact common sense immigration reforms, including addressing the chronic H-2B visa shortages and other shortcomings of the program.


Court Allows Implementation of Presidential Proclamation Attacking Immediate Family Immigration

On December 31, 2020, a federal appeals court approved the implementation of a Presidential Proclamation barring visa issuance to intending immigrants unable to show either that they can private-pay for their medical care in the U.S. or that they will have unsubsidized health insurance within 30 days after entry.

The Presidential Proclamation, issued in October 2019, had been blocked by court orders while litigation challenging its legality was underway.  Maine was one of several states that sued to strike down the Presidential Proclamation

As MeBIC has noted earlier, this Presidential Proclamation would slash annual immigration by hundreds of thousands annually, with the impact falling hardest on intending immigrant immediate family members of U.S. citizens and permanent residents, and people applying to immigrate after selection in the Diversity Visa lottery.  Immigrants through employment are typically immigrating through professional level jobs that are likely to offer health insurance as an employee benefit.

Due to subsequent presidential proclamations issued during COVID-19 suspending entry of most immigrants to prevent job competition, this court ruling, which would take effect in mid-February, will have little immediate practical impact.   It’s likely that the Presidential Proclamation will be one of many that the Biden administration will reverse within its first 100 days.


White House Extends Entry Bans of Immigrants and Temporary Foreign Workers

The White House announced on December 31, 2020 that the bans due to expire that day on entry into the U.S. of most immigrants, and of many temporary foreign workers,  would be extended through March 31, 2021.  The new Presidential Proclamation’s rationale for extending  the entry bans is to prevent job competition while the economy continues to struggle due to the pandemic.

Previous Presidential Proclamations created a temporary ban against entry of immigrants, originally set to expire on June 24th and extended through December 31, 2020, followed by a ban through December 31st against temporary foreign workers, with exceptions for health care professionals and those working in the food supply chain.

These entry bans keep U.S. citizens and permanent residents from being joined by their immediate family members, and prevent U.S. employers from getting the foreign talent they need despite having  already demonstrated to the Department of Labor that even during the pandemic, they can’t find qualified, willing and available U.S. workers to fill the jobs the foreign workers would be coming to do.

The incoming Biden administration should end these bans.