Notice & Comment

Keeping Up with Immigration Law

With the deluge of immigration law news, it is hard for every development to get the attention it deserves. Here I hope to draw some attention to a lawsuit filed on September 19, 2017 that challenges the Trump Administration’s delay of a start date of an Obama-era notice and comment rule.

Days before President Trump took office, the Obama Administration finalized a notice and comment rule called the International Entrepreneur Rule. This rule allows the Department of Homeland Security to use its immigration parole authority to allow certain entrepreneurs of start up companies to work in the United States. The rule was due to become effective on July 17, 2017. Congress gave the executive the discretionary power to parole foreign nationals into the United States “on a case-by-case basis for urgent humanitarian reasons or significant public benefit.” Parole is not the same as an admission. The Obama regulation established “general criteria for the use of parole with respect to entrepreneurs of start-up entities.” Those general criteria are to be applied by border officers on a case-by-case and discretionary basis.

On July 11, 2017, the Trump Administration announced an eight-month delay in the effective date of the International Entrepreneur Rule. In the same notice, the Department of Homeland Security said that it would propose to rescind the International Entrepreneur Rule at a later date. One can infer from the notice that the Trump Administration believes that the Obama rule looks too much like an immigration benefit that Congress did not establish.

In announcing the delay, the Trump Administration did not seek comment before the delay took effect, invoking the good cause exemption under the Administrative Procedure Act. The Trump Administration reasoned that the good cause exception was available to it because if the Department of Homeland Security let the Obama rule take effect, the department would expend resources implementing a rule that it intends to rescind shortly. The Trump Administration also argued that it would “sow confusion” among regulated parties if it began to implement something that it intends to stop.

The failure to accept comments before the delay took effect led the National Venture Capital Association to file a lawsuit in the US District Court for the District of Columbia. The lawsuit claims that the Department of Homeland Security invalidly invoked the good cause exception. The complaint questions what the Department of Homeland Security has been doing since January. Does implementing this particular rule really require significant resources? If so, has the agency already expended agency resources to implement the rule? Or has the agency done nothing since January because it never intended to implement it? If so, why did the agency wait until just before the effective date to announce the delay?

This lawsuit raises some interesting questions, and immigration law could use some help from administrative law in thinking about them. Has the good cause exception been used in this way before? Can an agency use the good cause exemption to suspend or delay a notice and comment regulation it does not like? If this is an appropriate use of the good cause exception, is it sound agency practice? Does the delay in the effective date signal that the upcoming rescission notice and comment rulemaking is meaningless because the result is pre-ordained?

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