Implications of the 2024 Elections on Immigration: Projections and Analysis

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Meagan: Welcome everyone to our Immigration Insights version of the Ogletree podcast. Today I’m going to be talking about the 2024 elections preview and potential immigration impacts, and I have with me Jim Plunkett. He’s a shareholder in Ogletree’s, Washington D.C office. He’s the director of Ogletree Government Affairs. And Jim, can you just share a little bit about your background and how you found yourself in this governmental affairs role?

Jim: Sure. Well, thanks for having me, Meagan, and thank you everyone for listening in. I’m excited to do this because I haven’t done one of these podcasts in a while, but as chair of the Government Affairs Practice Group here at Ogletree, and with the election around the corner, I’m a little bit like an accountant, I think on April 14th. So it’s definitely busy season for me. So I got into this role in a sort of, I guess, unique way. I didn’t set out to be a government affairs professional, but I was an attorney for, an associate attorney for about eight years. And then with the Obama administration there was presented a lot of upheaval in the labor and employment and immigration policy landscape. So I jumped on an opportunity to join the US Chamber of Commerce, which is the largest lobbying group in the United States. And I got a job there as their labor policy director. And I spent, pretty much the Obama administration at the Chamber of Commerce. And in that role I worked quite a bit with some of our colleagues, Meagan, and because they’re involved in the chamber and over time, they persuaded me to come and join Ogletree. And the timing was right because I joined right about the beginning of the Trump administration, and it was really those eight years that the Chamber of Commerce that I developed my passion for policy work.

It was a great opportunity for me to really see how the sausage gets made in Washington D.C. And you get this sort of inside glimpse into how bills and legislation gets created and the regulatory process. And I’ve sort of taken those skills and those contacts, and I’ve brought them over here to Ogletree. And in my role here, I’m helping our clients decipher the alphabet soup of federal agencies in Washington, D.C, helping them navigate the legislative process, helping them navigate the regulatory process and in certain situations, providing them with opportunities to influence those outcomes. And immigration policy is obviously one of those issue areas that are a big concern for our clients, particularly with the election coming up around the corner. So I’m excited to talk about what could be in store in that area today on this podcast.

Meagan: Yeah, and I mean, you’re exactly right. I know immigration is a huge buzzword on the campaign trail for both candidates, but I mean for people who are working in and around the US immigration system, like our foreign national employees of our clients, like stakeholders, immigration is really front of mind just because of we have seen what a Trump administration sort of immigration policy held and shifts that we saw with that. And so I think everyone is sort of wary about what that might be. And then also we have an unknown, a bit of an unknown with a Harris administration. So I think it’s great that you’re going to be here and share your insights with us. Like I said, we’ve seen a Trump administration before. I was practicing business immigration law during the Trump administration, so I saw firsthand some of the impacts an administration can have specifically on business immigration. And that’s without passing a single law, what an actual just sort of shift in ideology can do. So that’s why I think it’s super important to just go over these things now so companies are aware and can prepare themselves.

Jim: Absolutely. Yeah, there’s a real human element to immigration law and policy, Meagan, that really resonates with me and obviously resonates with our clients because these are real people that we’re talking about with families who are trying to navigate these jobs across overseas. And it can be really daunting. And when the policy is uncertain or even restrictive, that’s understandable. All the anxiety that can create within the workers and their family members and then how that bubbles up to the sort decision makers that we engage with, Meagan.

Meagan: Yeah, no, definitely. So before getting into the Harris versus Trump, are there any major policy shifts for the spring regulatory agenda that we’re likely to see out of the very end of the Biden administration?

Jim: That’s a good question, Meagan, right, because everybody’s focused on the election. It is around the corner, but we still have got the Biden administration right now who’s still in the White House and they’re still governing. And I always say that the regulatory apparatus in D.C never really stops. It doesn’t matter who’s in charge, whether they’ve got a D after their name or an R after their name. There’s always the sort churn and burn of the regulatory machine in Washington D.C. However, I would say that right now it is relatively dormant. The agencies that make immigration policy that we tend to focus on, whether it’s USCIS, DOL or the State Department, I think they’re sort of just laying low right now. Nobody wants to put out a regulation that might be perceived negatively for the candidates at the polls. And so they’re just sort of laying low and defending regulations that they issued earlier in the year.

And I think they administration really sort of top-loaded the beginning part of the year, understanding that so much of focus would be happening around the election right now. So they got most of their policies, final policies in place. There’s still a few open-ended regulations that we’re monitoring Meagan, but I think that’s more just sort of they’re waiting in place. And if we see, we’ll talk about this in a minute, in a little more detail, but I think those regulations could be taken up and driven to completion by a potential Harris administration. But I don’t expect any major earth-shattering regulations to be finalized between now and the end of the year.

And then similarly with Congress, they’re not around much Meagan, they’re not in D.C right now. They are out on the campaign trail. They are going to be out on the campaign trail until after the election, and then they come back for about two weeks and then they go home and they carve up their turkeys and they eat their mashed potatoes and stuffing like the rest of us will hopefully be enjoying for Thanksgiving, and then they come back in December and then that’s it. And during that time, those brief times in D.C, they have what they call must-pass legislation that they’ve got to address here. So things like funding the federal government, funding the military, there’s always sort of year-end tax extenders they’ve got to deal with. They’re also in the Senate.

Senator Schumer and the administration are going to want to get judges appointed. There’s other agency officials that we’re monitoring very closely about whether they may or may not get confirmed. So there’s a lot on their plate in a little bit of time. And I think that means that there’s not a lot of opportunity for addressing any sort of immigration legislation. And that’s even putting aside the fact that it’s so polarizing and so challenging for Congress to do anything in that space. So I think generally speaking, we’re sort of in this, everybody in D.C, including the agencies and Congress is in this wait and see moment right now.

Meagan: So do you think that USCIS, they had introduced some regulatory changes that they were trying to get done, the HMB modernization, EAD extension, then modernizing regulations, governing non-immigrant workers. I know that proposal is scheduled for January, but do you think they’ll be able to actually finalize any of that in 2024?

Jim: They can, right. It’s within their power to do that. But I just think sort of politically speaking, reading the writing on the wall, I don’t think they are going to show their cards on those just yet. I think the folks in the current administration, the political folks who are holding the pen, so to speak on these regulations, are waiting and hoping to see Harris administration and then they can sort of continue on with these incomplete regulations and see them through to completion in a Harris administration, I think because if they finalize them now for various reasons and Trump wins, they wouldn’t be successful going anywhere anyway. So I think rather than work to finalize them and then get them potentially repealed in a Trump administration, they’re just going to hold off and say, let’s wait till and cross our fingers and hope we get Harris and then finalize them.

Meagan: Yeah, that makes sense. You’re talking about sort of carrying on with the Harris administration if they did try to finalize these things and then Trump, we had a Trump administration. Can you talk a little bit about the Congressional Review Act and how that can play into it?

Jim: Sure. Yeah. This is a really powerful tool that Congress has. It was included, if you remember Newt Gingrich and his contract with America was included in that legislative package. Basically what the Congressional Review Act does, Meagan, is that it allows Congress to look at a regulation passed by a federal agency and vote to rescind it. They can say, we don’t like that regulation. You finalized it, but we’re going to rescind it. But if you sort of play that out, no president is going to sign a resolution that Congress passes to rescind a regulation that his or her agency finalized. So it really only comes into play, and we have, the history shows us this. It really only comes into play during changes in administration. So the first time we saw this used was from President Clinton to George Bush, and they rescinded an OSHA ergonomics regulation.

We didn’t see much of the Congressional Review Act for some time. And then when President Trump came in, he used it about maybe about 15 to 17 times. President Biden has used it as well and the Congresses that he’s overseen or that have been seated during his administration have used it as well. Because of that, it plays a significant role in the timing of the finalization of these regulations. And that’s why I said that the Biden administration top-loaded the year with their regulations because they know that any regulation that gets finalized now is ripe for potential rescission should Trump and the Republicans take the sweep. In other words, win the White House, the Senate, and the House. So that’s another reason and a major factor I think, in why we aren’t seeing and why we won’t see agencies finalize regulations from between now and the end of the year.

Meagan: No, that makes a lot of sense. So we’ll move on to looking at Harris-Waltz administration in a second, but I did want to mention one of the things I know that everyone was really holding their breath for was DOS, Department of State, finalizing like future plans for a domestic visa renewal. They did the pilot program, but I think that that seems to be not on the regulatory agenda upcoming, unfortunately.

Jim: So we just didn’t really have any information. We were hoping to see something like that from some more information from the state department on that state-side visa renewal pilot program. From what I’ve heard is that they were pretty pleased with the way the program was run and that they would like to expand it, but that for the reasons that we just mentioned, it’s challenging for them to do it now, there’s also everything else in life, follow the money and there’s just not enough money left to sort of expand it.

So my understanding is that in a Harris administration, they would like to do this again and potentially expand it to more eligible folks, more visa holders and their families and the like. So that would definitely be something that in a Harris administration, I’d say maybe in the first two quarters of the Harris administration, we might be able to see. Conversely, in a Trump administration, I’m not sure, I don’t think that they would move forward with this. At the very least, they would hit a pause button on this thing indefinitely, but I wouldn’t, and that would be sort of a best case scenario. I think you might just see in a Trump administration, it sort of put in the wastebasket altogether.

Meagan: Yeah, that makes sense. Which is unfortunate. One, I think I get a question like twice a week I get a question about that program. Everyone was really hoping that that would come to fruition for more people as it would be super convenient for people to not have to travel outside to US Consulate every time they needed a new Visa stamp.

Jim: Yeah, and it’s a great example, Meagan, of the differences that we would see in terms of employment-based immigration policy between Harris and Trump. Whereas Harris looks at that and says, well, gosh, it doesn’t make sense for folks to have to, there’s form over function here. It doesn’t make sense for people to have to go abroad just to come back and do all this unnecessary paperwork or cut through all this unnecessary red tape. Let’s see how we can streamline this and make it easier. And you contrast that with I think Trump, and that would be what a Harris administration I think would try to take to their broader employment-based Visa policies. Let’s streamline it, let’s make it easier. Let’s eliminate redundancies. If things were required in person, can we do them virtually or wave them all together? Let’s apply common sense to some of these processes that folks are navigating.

I think that’s a general view that they would take towards their policy agenda. Contrast that with Trump, I think you would say, well, if you’re supposed to go abroad to renew this, then you got to go abroad to renew it, and we’re not going to defer to prior approvals. And if you need to be in person, you’re going to need to be in person and you got to fill out every box in the form. So I think that’s, generally speaking, that’s going to be how a Harris immigration policy agenda would differ from a Trump policy agenda.

Meagan: Yeah, no, that makes sense. And that’s similar to what we saw already with the Trump administration is it was less streamlining and a little bit more red tape or just slowing down in general of processes all around, whether it was with USCIS or the Department of Labor or with the Department of State. So we just saw a lot of that.

Jim: And we have that roadmap, right? History is going to be a guide for us. We saw what those four years were. You talked about how you were actively practicing during that time, Meagan and I think we’re likely to see that again, which obviously can be challenging for us and for our clients, but at least we sort of, I think, know what we’re getting into.

Meagan: Yeah. We’ve seen it before.

Jim: We can prepare. And I’ve talked to some of our colleagues, Meagan, I haven’t talked to you specifically about this, but when they look at the numbers and the data during the Trump administration, yes, things were a little bit more challenging, a little bit more frustrating, but our colleagues still made sure that our clients got their people where they needed to be. We were able to provide them with really effective service despite all the roadblocks that were put in place.

Meagan: Yeah, I think that’s right. It was just getting there was a little bit harder for everyone. And yeah, like you said, more frustrating. But overall, I think maybe it didn’t have the catastrophic denials and things like that. I think COVID really threw a wrench in all of that more.

Jim: Absolutely.

Meagan: Especially with travel and not being able to go to consulates and things like that. So what are some other, since we’re sort of on the Trump administration, what are some other immigration or policies that they have said they would want to implement or prioritize?

Jim: Sure. I think it might be helpful to view there a potential Trump policy agenda in two separate buckets. The one is a sort of employment-based visa policy agenda that we tend to deal with more, Meagan, versus the refugees, asylees, the southern border. I think that is going to be more the focus, at least initially in a potential Trump administration. I wouldn’t be surprised if executive order on inauguration day dealing something with the border and the situation down there, that was a prime policy priority for the first Trump administration.

And I think it’s even become more of a priority if that’s such a thing in a new Trump administration. And that includes potential programs like TPS and DACA. I think that’s sort of that first trunch or that first category of immigration-related issues that a Trump administration would deal with. And then they would get to the employment-based immigration that we deal with. And there is, we talk about dusting off their old playbook. There was, besides throwing sand in the gears and making these processes more challenging, the regulations that the first Trump administration finalized, that were struck down in court, and I’m thinking in particular the H-1B wage rule would’ve really increased the prices and the cost of operating at the H-1B Visa program. That was struck down in federal court, but it was struck down on procedural grounds. They didn’t dot their I’s and cross their T’s. So there’s still an opportunity there. And the rule is written, the court just didn’t get to the substance or the merits of it [inaudible 00:20:32] down.

So a Trump administration can just can say, okay, what did we do wrong here from a process standpoint and how can we correct it? And then let’s issue this rule again and finalize it. Another area that I think our listeners might be interested in is the elimination of work authorization for spouses of H-1B visa holders. This was something that appeared on Trump’s regulatory agenda towards the end of his administration. We never actually saw the proposal. The proposal was never released to the public, but as soon as the Biden administration came in, they stripped that off of the regulatory agenda. That’s definitely something that we could see again because it does fit with what we’ve been discussing, a Trump policy agenda of making it just harder for workers and for employers to operate these programs.

Meagan: And do you think that that could include where we saw USCIS say, okay, for spouses of E-visa holders and L-visa holders, they are now employed incident to status, and that really didn’t go through, that wasn’t going through any congressional voting or anything, those sort of things where it just sort of quietly happened. Do you think we could see an administration walking those back as well?

Jim: Yeah, I mean anything, and I think this would probably, to a Harris administration too, Meagan, it’s hard to get stuff through Congress these days. Even if you have a trifecta there, even if a party sweeps, you’ve got the filibuster in the Senate, immigration can be, it is a polarizing issue. So if you’re a politician located in a state on the southern border, whether you’ve got a D after your name or an R after your name, you probably think differently about immigration than somebody from North Carolina or something like that. That’s a state that’s not directly on the border.
So either administration might say, okay, what’s the quickest and most effective way to make a change in a policy? Whatever change I want to make. And rather than wait for Congress to act, I think they’re going to try to see, well, what can we do administratively? And we saw an example of this over the summer, Meagan, with President Biden’s executive order on the border. A lot of that restricting crossings on the border, a lot of that was taken from bipartisan legislation that was being negotiated by Senators Lankford and Sinema. And that was effectively squashed by former President Trump. A lot of what Biden did in that executive order was sort of taking ideas from that border deal and saying, okay, well this isn’t going to happen. How can I implement this administratively? So I think that is a strategy, a policy strategy that either administration would employ, Congress is too slow or they’re too polarized, but I need to get something done. And what’s the most effective and quickest way for me to do that? Let’s do it through the agencies.

Meagan: Yeah. And I think that brings up such a good point, that wider audience that isn’t dealing with immigration every day may not know is the immigration laws just don’t really change. It’s really the agencies that are interpreting things differently. And so that’s really the major changes that we see. We never really see these, especially with employment-based immigration, because it’s not as hot a topic. And so we just see USCIS or DOL, whether it’s challenges like court challenges to those regulations or just their own agency interpretation. We see those changes go through that way.

Jim: Right. And those court challenges, for better or for worse, are going to probably end up leaving a lot of our clients sort of in the lurch and some uncertainty. If it’s a policy that they like that’s beneficial to our clients and to their employees, that could be challenged by certain interest groups, and there could be a pause on the implementation of that regulation in a way that creates some frustration for our clients. On the flip side, in a different scenario, there could be a regulation or a policy path that is restrictive and ties the hands of our clients, but then is also challenged perhaps by the broader business community. And we’d hope for similar relief where we could continue to do what we’re doing or while the courts sort that out. But yeah, that’s a whole other sort of thing. Is that the role that the courts might play in reviewing challenges to these regulations and whoever’s in the administration, whatever they do, they’re going to be challenged in the courts.

Meagan: Yeah. And this kind of brings us, we don’t have to go deep into it, but it kind of brings us to the Chevron deference and the SCOTUS decision. So do you want to quickly talk about how that could impact, especially in immigration, where the agency is making so many changes or makes the main changes that we see?

Jim: Yeah, no, I think it will have a significant impact, Meagan. So what this case, Loper Bright did, and the Supreme Court just decided this at the end of its term in the summer of 2024. The Loper Bright case reviewed a case that had been around since the eighties called Chevron. And in that case, the court said, “hey, when Congress passes a law and an agency is implementing regulations or making policy in response to that law, and the law is ambiguous as to the meaning as to how much power or authority it’s giving Congress, federal courts should defer to agency’s interpretation of that ambiguous statute. They should say, hey, you know what? Know the EPA knows the environment better, environmental policy, and what impacts environment for good or for bad better than anybody. So let’s defer to their expertise in interpreting this ambiguous statute when passing their regulation.

The Loper Bright case decided a few months ago, said, hold on, that’s a little nutty for a couple of reasons. Number one, it allows agencies to usurp the power of the judicial branch because they are interpreting and saying what the law is. It also allows them to sort of rewrite the law in a way to make it more favorable to them in a way that Congress should do. Congress should be more specific in telling the agencies what they should do. So Loper Bright said, the bottom line is judges and federal courts need to determine what an ambiguous statute is, and we’re no longer going to defer to agencies interpretation. So the way this would play out in the immigration space, Meagan, is it obviously depends on where you’re sitting and who’s sitting in the White House and it goes back to those examples that I said before, a Harris administration, if they’re making changes to, they’ll be defending, for example, the parole in place changes, right? Loper Bright could impact that saying, “hey, this is not, you’re really stretching the bounds of what it means to be the parole in place here for these non-citizen spouses of US citizens. Or things like some of these programs that I’ve mentioned like TPS, DACA, the work authorization for H-1B spouses, those could all be attacked. Those sort of policy positions could be attacked by interest groups saying, hey, this is not what Congress said. This is not the best reading of the law. The agency is going too far in their interpretation of the law. Conversely, in a Trump administration, if they’re taking actions that also push the bounds of the regulations, but in a way that has a negative impact on the employment community, there’s opportunity there to use Loper Bright and say, hey, this is not what Congress intended. The courts need to step in here and stop this. It really can go, I think, both ways, depending on who’s in the White House.

Meagan: Yeah, no, that makes sense. So we’ve talked a lot about sort of the executive branch, a little bit judicial. So what can we expect from Congress in 2025? Are there any big immigration congressional policies on either the Democrat or Republican side that we might see?

Jim: I think if the Republicans, if they win both chambers or even just one chamber when they’re in the majority, it’s going to be border, border, border, right? Employment-based immigration. And I don’t think they’re going to get much into that. They see the border as, they view it as a crisis. So there are things, we have various bills out there that in some way or some fashion, provide more funding for the border, new technology for the border, all that sort of stuff. You’re going to see a focus on that.

Democrats on the other hand, we don’t know a lot from Harris and it’s interesting because I do think that she will, and I alluded to this before, I do think she’ll pick up that regulatory baton that might be handed off to her by President Biden in terms of these H-1B modernization rule and completing the regulatory agenda for the Visa programs that our clients use. But then with regard to the border, both she and President Biden have been a [inaudible 00:31:03] little bit to the right with his executive order in June. And Harris recently just said that she’d signed the toughest and most comprehensive border bill in US history.

And it’s unclear at this point, is that just campaign talking points? So we don’t know a ton, but the Democratic platform has said, hey, the US Citizenship Act, we’re going to promote the US Citizenship Act. And we haven’t heard about that bill in quite some time because it was dropped, I think in February of 2021, just like weeks into Biden’s presidency. And then it didn’t really go anywhere and that bill is a broader comprehensive immigration reform bill that really just focuses on pathways to lawful permanent residency. So it’s a little bit of a pie in the sky, I think. Same thing with the Republicans just focusing on the border, right? It’s like we’re going to get everything that we want and we’re not going to give anything to the other side. Those are the sort of polar opposites, the border or something like the US Citizenship Act or the American Dream and Promise Act, right?

These are all those bills focus on pathways to lawful permanent residents. There are some bipartisan areas of agreement. There’s talk right now with Congressman Luttrell, he’s a Republican in Texas. He’s working with Tom Suozzi, who’s a Democrat from Long Island, writes the sort of strange [inaudible 00:32:38], but they both recognize that… They’re trying, I think, to put the politics aside and say, hey, the system is broken, whether we’re talking about the border or employment-based visas, we need some reforms here.

So they’re trying to come up with some areas of bipartisan agreement on immigration and do the opposite of what I just said and say, okay, let’s understand that it’s going to be a give and take, and we’re maybe not going to get everything that we want, but it’s getting to the point where we’ve got to do something because the system is so broken and we’re all just spinning our wheels. And then this goes back to what we said at the beginning, like the human element of this, that hey, this is really impacting people, so let’s come up with a way that we can control the border, boost our economy and make common sense changes that everybody can agree on. That’s ideally how Congress is supposed to work.

Meagan: Right. I was going to say that sounds too good to be true.

Jim: Right. Yes. Yeah. Were you a little bit naive in thinking that that might happen? Maybe, but ideally that’s how it’s supposed to work, so we’ll see. But yeah, so you could have them just banging at the table, both parties advancing their own sort of talking points, or you could potentially have them talking about these areas of bipartisan agreement and we’ll have to see how the elections unfold and what that means for the majorities in the Senate and in the House of representatives.

Meagan: I’ve taken so much of your time, but this was so insightful. So thank you so much for sharing your expertise, and I hope that for the listeners, this sheds some light on some upcoming changes we may see either, again, with the Harris or Trump administration, our goal as attorneys for employers is always to make sure our clients are as prepared as they can be for really any situation. So the election definitely takes some preparing for. So thank you so much, Jim, for joining me today.

Jim: Absolutely, Meagan, and maybe know what we should do is maybe the two of us can get together again post-election, whether that’s November, December, or even early 2025 when we know a little bit more, and we can do this again with a little bit more concrete info.

Meagan: Yeah, that’s a great idea. Yeah. Absolutely.

Jim: Fabulous.

Meagan: All right, well thanks for chatting with me today.

Jim: Thank you, Meagan.

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