Uncertain Future of Various Immigration Benefits

A unique feature of U.S. immigration law is how certain rules and policies can change depending on the presidential administration. A president’s ability to dictate and change immigration rules largely depends on whether a rule is statutory, regulatory, or administrative policy. Understanding the difference between these classifications can provide clarity as to the benefits most susceptible to change depending on who occupies the White House.

Congressional Action Required to Change Immigration Law

Much of the existing immigration framework is set by statute, and therefore would require an act of Congress to change. The Immigration and Nationality Act of 1952 (INA) defines many of the requirements with which nonimmigrant and potential immigrants are familiar, such as the number of new cap-subject H1Bs that can be issued each fiscal year, or that immediate relatives of U.S. citizens are exempt from annual immigrant visa allocations. Any fundamental changes to these and many other areas of immigration law generally would require a bill to be passed by both houses of Congress and then signed into law by the president.

Still, while a president cannot directly control Congress’s legislative actions, a president can propose legislative immigration reforms to Congress. The so-called “bully pulpit” of a president allows for influence over Congress’s agenda.

Agencies Issue Regulations to Interpret or Enforce Laws

Once a law is passed, it typically is up to an administrative agency – which generally is headed by a person appointed by the president – to create regulations that define how a statute will be administered and enforced. For instance, while the INA created the F-1 program for foreign national students, the optional practical training (OPT) program was created by the U.S. Department of Homeland Security (DHS) via regulation as a natural extension of the F-1 program authorized by Congress.

While the president can direct an agency to promulgate a regulation, in order for a regulation to go into effect, it generally must go through a formal rulemaking process. This process can take months or even years. And, once a regulation is finalized, the only way to substantively modify or eliminate it is either for Congress to pass a law or for a new regulation to be drafted that again goes through the formal regulatory process.

Executive Orders and Administrative Policy

Many immigration benefits are the product of administrative guidance or internal guidelines and procedures developed by an agency as to how the law should be interpreted and applied. Administrative policies are most directly influenced by the president’s directives or the administration’s general agenda. The president can influence administrative policy through executive orders and by choosing who will lead a federal agency.

For example, on February 2, 2021, President Joseph Biden issued an executive order on restoring faith in the U.S. legal immigration systems and strengthening integration and inclusion efforts for new Americans. This executive order led the USCIS to announce updated policy guidance in the USCIS Policy Manual explaining how the USCIS will give special consideration to an individual in a STEM field, especially in areas of critical and emerging technologies, or other STEM areas important to U.S. competitiveness or national security, as explained in the MurthyDotCom InfoArticle, Overview of the EB2 National Interest Waiver (08.Jan.2024). However, because this special consideration is only an administrative policy, a new president can quickly end this policy with an executive order, without Congressional action or the aforementioned notice and comment rulemaking.

Conclusion

In the United States, presidential administrations can change every four years, and with each new administration, immigration law and policy are likely to be affected. Therefore, it is important to understand which immigration laws or policies are most susceptible to change depending on the presidential administration, and to take advantage of certain policies and adjudication trends when they are in force. The Murthy Law Firm will continue to update and inform the public on immigration policies, as appropriate.

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