How to Make Immigration Regulations
"Each agency has its own culture and internal process"
In his first years in office, President Biden undid many of the Trump Administration’s restrictions on immigration. But with aid to Israel and Ukraine now tied to immigration in Congress, President Biden seems poised to move his immigration policy to the right.
As Chief of Policy and Strategy at U.S. Citizenship and Immigration Services, Amanda Baran was central to President Biden’s early efforts to reverse his predecessor's policies. Baran has been on the frontlines in some of the most contentious policy aspects of the immigration crisis, and understands the power of rules and regulations to affect immigrant communities. Previously, Baran served as the Principal Director of Immigration Policy at the Department of Homeland Security, where she co-founded the Department's Council on Combating Violence Against Women (now the Council on Combating Gender-Based Violence).
In this interview, I spoke with Baran about how to resolve policy disputes between agencies and assert your priorities during a change in administrations.
What You’ll Learn:
How agencies coordinate on regulatory policy
How to lead large overhauls of immigration rules
How user interviews and feedback loops shape rulemaking
Tell me about what you were working on at DHS.
I was the Chief of Policy and Strategy at the U.S. Citizenship and Immigration Services (USCIS), which is part of the Department of Homeland Security, and is the agency that processes immigration applications: green cards, H-1B visas, temporary protected status, etc. It’s the agency before which people apply for citizenship and asylum. DHS shares the responsibility for running the immigration system with the State Department and the Department of Justice.
Here’s how agency policy broadly works: Congress passes laws, and then agencies interpret those laws through regulations and sub-regulatory policy. You have to answer questions like: “How many copies of this document do you need to include when you file for your green card? What types of questions should we have on forms? How should the agency interpret words laid out in statute?” This type of work doesn’t make the news, but it’s important that we have these policies so that people can apply for benefits.
My job was to create more fair access for people coming through our system. President Biden issued an Executive Order titled, “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans,” that prompted us to ask questions: “What are the barriers and how do we remove them? Why are immigration forms so long? How do we make the rules clearer and easier for people to follow?”
Regulations are a powerful tool that most people don't know much about. Regulations define statutes, and they have the force of law. It can take years to write regulations. People complain that the process is bureaucratic, but the bureaucracy exists for a reason. The government wants to make sure that the public has an official way to weigh in on major policy changes. Anyone can comment on a regulation. You don’t have to be associated with any particular organization or have specific expertise.
The Trump Administration used regulations and sub-regulatory policy to curtail access to immigration benefits. My goal at USCIS was to rescind harmful policies and implement fairer ones. I led a large team of incredible public servants who did, and still do, that work every day. My specific area of expertise and passion lies at the intersection of women's rights and immigration. The law has created immigration benefits that give special status to people who are survivors of domestic violence, sexual assault, and trafficking and to children who are abused or neglected. I’ve poured a lot of energy into those issues and my team was successful in implementing a number of policy changes to help those populations.
How did you understand the Trump Administration immigration regulations and then go about changing them?
The Trump Administration was successful in harnessing the regulatory system to make a number of significant policy changes, but many of them were tied up in legal challenges. When I arrived, many of these regulations were in different stages of litigation. We had to wade through the litigation and understand our options if we wanted to get these regulations off the books. We took steps to make that happen. We also wanted to put forward our own regulatory agenda and propose an affirmative policy platform. We had direction from the President through his Executive Orders. We engaged with advocates to understand their most urgent policy needs. We took suggestions from civil servants who are experts in their fields. We examined our resources and thought of ways to make internal processes more streamlined. We discussed these with leadership and formulated an agenda that you can find online at reginfo.gov. This agenda is updated every spring and fall and spans across government.
Regulatory development requires the talents and skills of many different people at many different parts of an agency, throughout the interagency, and in the White House. At DHS, to propose a regulation for public review, it must first be cleared by all the component directorates within USCIS and component agencies within DHS. Then it must be approved by the Secretary to go to the interagency for their comments and clearance. After that process, which could take 90 days or more, it goes back to DHS to resolve comments. After comments are resolved, it is published in the Federal Register for a 60-day period to give the public an opportunity to comment. When the comment period concludes, DHS is required by law to consider these comments and explain why or why they are not taking the comments. This explanation is included in the final rule that is eventually published. It is a lengthy but considered process.
Who are you coordinating with on regulatory policy at these other agencies?
Each agency has its own culture and internal process, but generally, the Office of Information and Regulatory Affairs (OIRA), which sits within the Office of Management and Budget (OMB), is the hub for regulatory development throughout the government. OIRA will bring the parties within government together to resolve their issues if a dispute arises during the interagency review period. Most concerns can be resolved at the staff level, but sometimes there are disputes that have to be elevated to agency leadership or involve the White House.
And once a policy gets made, how do you think about implementation?
This is when things can get tricky within agencies, because a lot of work can be siloed. Sometimes operators don’t fully understand the policy or may envision implementation differently. It’s a constant challenge to ensure that the intent of the policy is being honored and implemented correctly. Good training is key, as is public engagement. The public is a valued partner because they feel the effects immediately if things are going sideways. It’s vital that agencies engage early and often with impacted communities.
How does information get filtered back up from the implementation level to the policy level?
I’m so glad you asked this question, because I care deeply about proper implementation. What is the point of a policy if its intended effects are not being felt? I immigrated to the U.S. as a kid and went through the immigration process, so I understand how intimidating it can feel. Like I mentioned previously, public engagement is very important. At USCIS we would host open conference calls with the public to get their feedback about what is working and what is not working. On some of those calls, we would have hundreds of people. Similarly, we would ask adjudications officers for their feedback, because we wanted to understand their perspectives. We would hear the most interesting things and solicit a lot of information. And now, under this administration, customer experience has become a priority — so much so that the President issued an Executive Order requiring agencies to review their policies and procedures to ensure that they are accessible by the public.
What would you say to the person who is currently occupying your role?
There is only one year left in this term. I would encourage my successor to identify some key goals and do what it takes to make them happen. There are many priorities on the table, things left undone, that folks will want to push through. Make sure you are part of this push. This requires knowing the substance and having good relationships with the right people.
And make sure your policy is legally sound. Many regulations and policies issued by the previous administration were stopped in courts because they were not meticulous. And last, I would tell my successor, I believe in you. It can be hard to work in leadership positions in established institutions when you’re a woman, and especially when you’re a woman of color. People don’t always want to respect your authority. But, girl, you got this.