International Entrepreneur Rule Gets a Second Chance

January 23, 2018 § Leave a comment

On December 1, 2017, in National Venture Capital Association v. Duke the United States District Court of the District of Columbia ruled the United States Citizenship and Immigration Services (USCIS) violated the Administration Procedure Act’s (APA) notice and comment rulemaking requirements when it decided to delay the international entrepreneurial rule (IER) without giving the public adequate notice or time to comment on its decision to delay the rule.

On January 17, 2017, three days before the end of the Obama administration, the Department of Homeland Security (DHS) published the final IER rule to allow foreign nationals who meet certain entrepreneurial standards to apply for parole, which is temporary admission into the United States to grow new companies. The rule was to set to go into effect on July 17, 2017, 180 days following its publication.

A Change In Administrations

On January 25, 2017, President Trump issued an executive order that required all agencies to reexamine its parole admission policy and ensure it was not being abused. On July 11, 2017, six months after the President’s executive order and six days before the IER became effective, the USCIS announced it would be delaying the IER until March 14, 2018 to review its compliance with the President’s executive order. The USCIS did not engage in the rulemaking process when it delayed the IER.

International Entrepreneur Rule Overview

Prior to the IER, the Secretary of Homeland Security had the authority to grant parole admission into the United States on a case-by-case basis if a foreign national had been subject to a national disaster or the foreign national could provide sufficient evidence that his or her admission into the United States would provide a significant public benefit. However, Congress had never defined a “significant public benefit” and the IER established what criteria the USCIS should use in determining if an entrepreneur would be considered a “significant public benefit.”

Then, according to the National Venture Capital Association decision, meeting the requirements did not automatically grant admission to an applicant; but rather, streamlined the agency’s [DHS] treatment of entrepreneurs. In forming the IER, the DHS had initially undergone the notice and comment proceedings under the APA, made significant changes, and delayed the final implementation of the rule until July 17, 2017, to ensure the USCIS had adequate time to allocate the resources necessary to implement the new rule without sacrificing any of its current services.

However, under President Trump’s executive order IER did not go into effect on July 17, 2017, and a lawsuit followed.

Challenging the Delay

On September 19, 2017, two foreign entrepreneurs and the National Venture Capital Association filed suit arguing the USCIS bypassed the APA mandatory notice and comment requirements when it delayed the IER.

The district court noted that national elections have consequences, but that the APA shapes how federal agencies may react to the results of elections. The APA’s notice and comment requirements are mandatory when an agency makes a rule as well as when an agency “seeks to delay or repeal a valid final rule.” An agency can only bypass the notice and comment requirements if the agency can prove it acted with “good cause.”

The district court found that the USCIS did not have a good cause for delaying the IER for several reasons. First, an agency cannot act with “good cause” if the agency delays implementing its decisions. Here, the USCIS waited six months after the President’s executive order to delay the IER and the DHS was unable to explain why the agency needed six months to reach its decision to delay the rule. The court found the agency’s delay inconsistent with the “good cause” expectation to the notice and comment requirements.

Second, the DHS argued that the IER had to be delayed because if the IER went into effect it would place the DHS in “fiscal peril,” i.e. the IER was too expensive. The district court dismissed this argument noting that the DHS previously admitted the IER’s filing fees would “ensure recovery of the full costs of providing services.”

Third, the DHS argued that allowing the IER to remain in place or going through the lengthy notice and comment proceedings would add confusion to the parole process because companies or individuals may misguidedly rely on it and invest significant capital and resources into a startup on the belief that the entrepreneur could be granted admission to the United States. The court dismissed this argument for two reasons. First, it ignored the foreign nationals or companies that had already relied on the IER before it was delayed, and second, the plaintiff’s argued that they would have applied even knowing their admission in the United States may be revoked early because even a short stay could aid their business.

The district court concluded that the USCIS’s delay of the IER must be vacated and the IER must remain in effect, at least, until the DHS undergoes the proper APA procedures.

Going Forward

In dicta, the district court mentioned that the IER could be repealed at any time so long as the DHS followed the rule and comment procedures under the APA. Therefore, while this decision is a temporary win for the IER it does not guarantee its fate.

Under the Obama administration, the DHS took approximately six months to comply with the notice and comment rulemaking procedures before publishing the final IER; the DHS under the Trump administration could revoke the IER in a similar amount of time. To revoke the IER the DHS would need to propose the change, solicited comments, respond to the comments received, and publish a final rule.

From here, the DHS could either decide to appeal the district court’s decision, the DHS could undergo the notice and comment proceedings and revoke the IER, or the DHS could let the IER remain in effect. Only time will tell, but future updates to regarding the IER will be provided.

With Immigration status under the IER potentially subject to change, speaking with an attorney may help determine if admission under the IER is right for you.

(Also see the original post on www.attorneyjanelee.com for an additional detailed discussion of IER)

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Current Status of DACA

January 22, 2018 § Leave a comment

DACA currently has Congress in limbo, resulting in a federal government shut-down after failing to pass budget by the January 19 deadline as a result of unsuccessful negotiations on a host of issues, including the Deferred Action for Childhood Arrivals program. The Republicans and Democrats are split on the intentions and the goals of the bill. The Democrats are focused on a “clean” reform (only addressing DACA) and continue to push the Dream Act to allow former DACA recipients a pathway to citizenship, while the Republicans are concerned about adding border security and potentially other items, and claim that the Democrats were pushing for a government shutdown. President Trump is encouraging Congress to develop comprehensive immigration reform, which has not happened since the Reagan era.

A problem with developing comprehensive immigration reform is that Congress was given the budget deadline of January 19th and a DACA reform deadline of March 5th. It’s nearly impossible to develop a budget for a bill that hasn’t been decided on yet. However, a 9th Circuit Federal judge in San Francisco has ruled that the administration must continue to process DACA renewals until a new bill is complete. This is a relief for former and current DACA recipients because President Trump gave a 30-day window between September and October to renew, but many weren’t able to do so for financial reasons. Application fees are $465 per person alone.

DACA recipients have already made the United States their home and place of growth. They have contributed to the economy by getting degrees, developing professional fields, buying cars and homes, serving in the military and paying federal and state income taxes. As of September 2017, there were over 800,000 DACA recipients. Deportation of DACA recipients would have devastating impact on the economy.

Current Status of the Dream Act of 2017

January 1, 2018 § Leave a comment

President Donald Trump has given Congress until March of 2018 to develop a replacement program for DACA (Deferred Action for Childhood Arrivals), which was an executive order made under Obama in 2012. The DACA program offered children of undocumented immigrants a temporary reprieve from deportation. Upon approval they were eligible for work permits and could not be deported for at least 2 years if they met the eligibility requirements.

The replacement bill, known as the “Dream Act of 2017” was introduced on July 20, 2017 by Senator Graham (R-SC) and was written with the help of Senator Durbin (D-IL). After being read twice, it was passed over for review to the judiciary committee. In order for the bill to become effective, it must be passed through the Senate, the House of Representatives and signed by President Trump.

There are approximately 800,000 children or DACA recipients that qualify as a “dreamer”. If an alien is considered qualified under the act, he or she will gain status as a permanent resident on a conditional basis.

According to section 3 of the Dream Act of 2017, the qualifications for being considered a “dreamer” include (1) having been continuously physically present in the United States for four years preceding this bill’s enactment; (2) was younger than 18 years of age on the initial date of U.S. entry; (3) is not inadmissible on criminal, security, terrorism, or other grounds; (4) has not participated in persecution; (5) has not been convicted of specified federal or state offenses; and (6) has fulfilled specified educational requirements.

Requirements following the application include a background check, medical exam, and registering with the select service. There is an application fee, but it can be waived in the following cases: if the alien is under the age of 18, has received a total income of less than 150% of the poverty line in a 12-month period, is under the age of 18 and homeless, is in foster care, or has a chronic disability that prevents self-care.

AILA response on Trump Administration rescission of DACA

October 20, 2017 § Leave a comment

AILA condemned the cancellation of DACA initiative and reiterated its support for Dreamers and DACA recipients with the following statement:

“While the administration has turned its back on the nearly 800,000 hardworking DACA recipients for whom this nation is the only home they know, AILA and its members continue to stand with them as they fight to realize their American dreams,” said Annaluisa Padilla, AILA President. “A countdown clock now hangs over the head of every Dreamer in America and it is incumbent upon Congress to act quickly before that clock runs out. The vast majority of Americans, on both sides of the aisle, are in favor of granting legal status and the chance to become citizens to the Dreamer population. These young people are making America greater every day, building stronger communities and contributing their talents to American industry. Congress must take up the mantle that President Trump has cast aside and champion Dreamers before time runs out.”

President’s Second Travel Ban Not Effective

March 29, 2017 § Leave a comment

Originally scheduled to go into effect on March 16, 2017, President Trump’s further attempt to enforce his second Executive Order issued on March 6, 2017 has been halted by the issuance of two temporary restraining orders from the U.S. District Courts in Hawaii and Maryland.  If allowed to go into effect, the order would have temporarily banned Muslims and refugees from travel and admission to the United States.  The second iteration included revisions in response to the litigation that followed President’s Trump’s first Executive Order issued on January 27, 2017, however the district court judge in Hawaii found that despite these changes the language of the Executive Order was unacceptable due to both its discriminatory impact and “the significant and unrebutted evidence of religious animus” underlying the ban. Read the court’s decision here.

 

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