[Federal Register Volume 82, Number 131 (Tuesday, July 11, 2017)]
[Rules and Regulations]
[Pages 31887-31890]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-14619]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 82, No. 131 / Tuesday, July 11, 2017 / Rules
and Regulations
[[Page 31887]]
DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 103, 212 and 274a
[CIS No. 2572-15; DHS Docket No. USCIS-2015-0006]
RIN 1615-AC04
International Entrepreneur Rule: Delay of Effective Date
AGENCY: U.S. Citizenship and Immigration Services, DHS.
ACTION: Final rule with request for comment; delay of effective date.
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SUMMARY: The Department of Homeland Security (DHS) is temporarily
delaying the effective date of the International Entrepreneur Final
Rule (82 FR 5238). This delay will provide DHS with an opportunity to
obtain comments from the public regarding a proposal to rescind the
rule pursuant to Executive Order (E.O.) 13767, ``Border Security and
Immigration Enforcement Improvements.''
DATES: The effective date of the regulation entitled International
Entrepreneur Rule, published in the Federal Register on January 17,
2017, 82 FR 5238, is delayed from July 17, 2017 to March 14, 2018,
except for amendatory instruction 6.a revising 8 CFR
274a.2(b)(1)(v)(C)(2), which will go into effect on July 17, 2017.
Written comments must be received on or before August 10, 2017.
ADDRESSES: You may submit comments, identified by DHS Docket No. USCIS-
2015-0006, by any one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the Web site instructions for submitting comments.
Mail: You may submit comments directly to U.S. Citizenship
and Immigration Services (USCIS) by sending correspondence to Samantha
Deshommes, Chief, Regulatory Coordination Division, Office of Policy
and Strategy, UCSIS, DHS, 20 Massachusetts Avenue NW., Washington, DC
20529. To ensure proper handling, please reference DHS Docket No.
USCIS-2015-0006 in your correspondence. This mailing address may be
used for paper, disk, or CD-ROM submissions.
FOR FURTHER INFORMATION CONTACT: Steven Viger, Adjudications Officer,
Office of Policy and Strategy, USCIS, DHS, 20 Massachusetts Avenue NW.,
Suite 1100, Washington, DC 20529-2140; telephone (202) 272-8377.
SUPPLEMENTARY INFORMATION:
I. Background
On August 31, 2016, the Department of Homeland Security (DHS or
Department), U.S. Citizenship and Immigration Services (USCIS)
published the International Entrepreneur Notice of Proposed Rulemaking
in the Federal Register. See 81 FR 60129. On January 17, 2017, DHS
published the International Entrepreneur Final Rule (the IE Final Rule)
in the Federal Register. The effective date is July 17, 2017. See 82 FR
5238.
The IE Final Rule amended DHS regulations to include criteria that
would guide the implementation of the Secretary of Homeland Security's
discretionary case-by-case parole authority as applied to international
entrepreneurs. Specifically, it applied to international entrepreneurs
who can demonstrate that their parole into the United States under
section 212(d)(5) of the Immigration and Nationality Act (INA) would
provide a significant public benefit to the United States. In
accordance with the final rule's criteria, such potential would be
indicated by, among other things, the receipt of significant capital
investment from U.S. investors with established records of successful
investments, or obtaining significant awards or grants from certain
Federal, State or local government entities. In addition to defining
criteria for the favorable exercise of the Secretary's discretionary
parole authority, the IE Final Rule established a period of initial
parole stay of up to 30 months (which may be extended by up to an
additional 30 months) to facilitate the applicant's ability to oversee
and grow his or her start-up entity in the United States.
On January 25, 2017, the President issued Executive Order (E.O.)
13767, Border Security and Immigration Enforcement Improvements,
prescribing improvements to border security and immigration
enforcement. See 82 FR 8793 (Jan. 25, 2017). Section 11(d) of the E.O.
requires the DHS Secretary to ``take appropriate action to ensure that
parole authority under section 212(d)(5) of the INA (8 U.S.C.
1182(d)(5)) is exercised only on a case-by-case basis in accordance
with the plain language of the statute, and in all circumstances only
when an individual demonstrates urgent humanitarian reasons or a
significant public benefit derived from such parole.''
After review of E.O. 13767, DHS decided to delay the effective date
of the IE Final Rule, to further consider it in light of E.O. 13767.
The new effective date for the IE Final Rule, with one minor exception,
is March 14, 2018. Additionally, DHS will issue a Notice of Proposed
Rulemaking soliciting public comments on the proposal to rescind the IE
Final Rule. The delayed effective date will provide an opportunity for
the notice and comment rulemaking to take place.
As indicated above, DHS is not delaying the effective date with
respect to one provision in the IE Final Rule. In the IE Final Rule,
DHS revised 8 CFR 274a.2(b)(1)(v)(C)(2) to add the Department of State
Consular Report of Birth Abroad (Form FS-240) to the regulatory text
and to the ``List C'' listing of acceptable documents for Form I-9
verification purposes. See 82 FR 5238, 5241 & n.3. As part of the IE
Final Rule, DHS also revised the accompanying form instructions to
reflect this change. As this provision is unrelated to entrepreneur
parole under the IE Final Rule, this one provision will go into effect
on July 17, 2017, as originally provided.
II. Administrative Procedure Act
The Administrative Procedure Act (APA) authorizes agencies to issue
a rule without notice and comment upon a showing of good cause. 5
U.S.C. 553(b)(B). The APA's good cause exception to public
participation applies upon a finding that those procedures are
``impracticable, unnecessary, or contrary to the public interest.'' 5
U.S.C. 553(b)(B).
DHS has good cause to forego notice and comment rulemaking to delay
the effective date for the implementing provisions of the IE Final
Rule, because
[[Page 31888]]
notice and comment rulemaking would be contrary to the public interest.
For the same reason, DHS has good cause to dispense with the 30-day
delayed effective date. DHS, however, is nevertheless soliciting post-
promulgation public comments on the decision to delay the IE Final
Rule.
Undertaking notice and comment rulemaking to delay the IE Final
Rule is contrary to the public interest for multiple reasons. If DHS
does not delay the effective date immediately, USCIS would be required
to expend limited agency resources to implement the IE Final Rule.
Those resources are otherwise needed for USCIS to effectively and
efficiently carry out its many existing immigration benefit programs
facilitating lawful migration into United States. For example,
implementing the program would require USCIS to establish a new
business line for the processing of entrepreneur parole applications,
hiring and training additional adjudicators, modifying intake and case
management information technology systems, modifying application and
fee intake contracts, developing guidance for the adjudicators, and
communicating with the public. Given that DHS will be proposing to
rescind the IE final rule, and may ultimately eliminate the program,
the expenditure of these resources is unlikely to ever be recouped from
filing fees under the new program. USCIS derives approximately 96
percent of its operating budget from fees, and would be required to
absorb the costs of the IE program within its existing operating
budget, possibly impacting efficiency and effectiveness in other
programs. An inefficient use of limited resources is not conducive to
the security and economic interests of the United States. Therefore, it
is necessary for DHS to immediately suspend the effective date of the
IE Final Rule.
Undertaking notice and comment rulemaking to delay the IE Final
Rule while DHS considers rescinding the rule also would be contrary to
the public interest for other reasons: doing so would sow confusion and
would likely cause the waste of resources by multiple stakeholders with
interests in this rulemaking. See generally Am. Hosp. Ass'n v. Bowen,
834 F.2d 1037, 1045 (D.C. Cir. 1987) (observing that exceptions to
notice and comment, although construed narrowly, are designed for
``situations where the policies promoted by public participation in
rulemaking are outweighed by the countervailing considerations of
effectiveness, efficiency, expedition and reduction in expense'')
(quotation marks omitted). Courts have found ``good cause'' under the
APA when an agency is moving expeditiously to eliminate uncertainty or
confusion that, if left to linger, could cause tangible harm or
hardship to the agency, the program, program users, or other members of
the public. See Mid-Tex Elec. Coop. v. FERC, 822 F.2d 1123, 1133-34
(D.C. Cir. 1987) (agency had good cause to promote continuity and
prevent ``irremedial financial consequences'' and ``regulatory
confusion'').
Allowing the IE Final rule to go into effect while the agency
undertakes notice and comment rulemaking to delay its effective date in
order to consider a rescission would lead the public to continue to
rely on the rule. Such reliance would include expending significant
effort and resources in order to establish eligibility under the
criteria promulgated by the IE Final Rule. These criteria include
establishing a start-up entity in the United States and demonstrating
that the entity has secured significant U.S. capital investment or
government funding. In the event the IE Final Rule is rescinded--which
the Department believes is highly likely--individuals who satisfied
these and other requirements of the IE Final Rule would quite possibly
do so without being able to reap benefits from the rule. Therefore,
providing notice and comment in this case is contrary to public
interest.
III. Executive Order 12866, Regulatory Planning and Review
This rule is not ``significant'' under E.O. 12866, Regulatory
Planning and Review.
IV. Paperwork Reduction Act
DHS is delaying the effective date for all proposed changes to the
Form I-131, I-765, and I-941, from July 17, 2017, to March 14, 2018.
Proposed changes to the Form I-9, with the exception to those changes
specific to IE parole, will be effective July 17, 2017.
Under the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13,
all Departments are required to submit to the Office of Management and
Budget (OMB), for review and approval, any reporting requirements
inherent in a rule. See Public Law 104-13, 109 Stat. 163 (May 22,
1995). This final rule involves a new information collection and makes
revisions to the existing information collections as follows:
A. Overview of Information Collection, Application for Entrepreneur
Parole, Form I-941
The IE Final Rule published on January 17, 2017, requires that an
applicant requesting entrepreneur parole complete an Application for
Entrepreneur Parole, Form I-941 which is a new information collection
under the PRA. USCIS did receive one comment regarding the time burden
of this form and, upon review of the work involved to review the form,
gather necessary information to support the submission, and the time
required to complete and submit the form, USCIS revised the estimated
hour burden per response to 4.7 hours. The Form I-941 is being delayed
until March 14, 2018.
a. Type of information collection: New information collection.
b. Abstract: If implemented, this collection would be used by
individuals who file an application for entrepreneur parole under INA
section 212(d)(5)(A) (8 U.S.C. 1182(d)(5)(A)) and new 8 CFR 212.19.
Such individuals, other than those filing an application on the basis
of a material change, would be subject to biometric collection in
connection with the filing of the application.
c. Title of Form/Collection: Application for Entrepreneur Parole,
Form I-941.
d. Agency form number, if any, and the applicable component of the
Department of Homeland Security sponsoring the collection: Form I-941,
U.S. Citizenship and Immigration Services.
e. Affected public who will be asked or required to respond:
Businesses and other for profit; Not-for-profit Institutions.
f. An estimate of the total annual numbers of respondents: 2,940.
g. Hours per response: The estimated hour per response for Form I-
941 is 4.7 hours; the estimated hour burden per response for the
biometric processing is 1.17 hours.
h. Total Annual Reporting Burden: The total estimated annual hour
burden associated with this collection is 17,258 hours.
B. Overview of Information Collection, Application for Travel Document
Form I-131, OMB Control No. 1615-0013
The IE Final Rule published by DHS on January 17, 2017 revised this
information collection (i.e. Form I-131) by including spouses and
children seeking parole on the basis of an entrepreneur parolee.
In addition to revising the form and form instructions, the IE
Final Rule revised the estimate of total burden
[[Page 31889]]
hours which had increased due to the addition of this new population of
Application for Travel Document, Form I-131, filers, and the increase
of burden hours associated with the collection of biometrics from these
applicants. The changes made to Form I-131 are being delayed until
March 14, 2018.
a. Type of information collection: Revised information collection.
b. Abstract: If implemented, this collection would be used by
dependents of individuals who file an application for entrepreneur
parole under INA section 212(d)(5)(A) (8 U.S.C. 1182(d)(5)(A)) and new
8 CFR 212.19. Such individuals would be subject to biometric collection
in connection with the filing of the application.
c. Title of Form/Collection: Application for Travel Document, Form
I-131.
d. Agency form number, if any, and the applicable component of the
Department of Homeland Security sponsoring the collection: Application
for Travel Document, Form I-131, U.S. Citizenship and Immigration
Services.
e. Affected public who will be asked or required to respond:
Individuals or households.
f. An estimate of the total annual numbers of respondents: 594,324.
The total number of respondents includes the additional population
of 3,234 individuals as estimated previously in the analysis in Section
IV.C.
g. Hours per response: The estimated hour per response for Form I-
131 Supplement is 1.9 hours; the estimated hour burden per response for
the biometric processing is 1.17 hours; the estimated hour burden per
response for the passport-style photographs is .5 hours.
h. Total Annual Reporting Burden: The total estimated annual hour
burden associated with this collection is 1,372,928 hours.
C. Overview of Information Collection, Employment Eligibility
Verification, Form I-9, OMB Control No. 1615-0047
In accordance with revised 8 CFR 274a.2(b)(1)(v)(C)(2), the IE
Final Rule published on January 17, 2017 updated the Employment
Eligibility Verification (Form I-9) Lists of Acceptable Documents, List
C and the Document Title table to reflect the most current version of
the certification or report of birth issued by the Department of State,
Form FS-240 Consular Report of Birth Abroad. DHS also made clarifying
changes in the form instructions by removing ``the end of'' when
describing the day on which Form I-9 completion is required and
revising the Office of Special Counsel for Immigration-Related Unfair
employment Practices to its new name of Immigrant and Employee Rights
Section (IER) in the Department of Justice's Civil Rights Division.
These changes to the Form I-9 will go into effect on July 17, 2017 as
currently scheduled.
The changes made to Form I-9 and instructions associated with new 8
CFR 274a.2(b)(1)(v)(A)(5) promulgated by the IE Final Rule are being
delayed until March 14, 2018. Those changes concern the acceptable List
A document described as the following: for an individual authorized to
work for a specific employer because of his or her status or parole, a
foreign passport and Form I-94 (or Form I-94A) that has the same name
as the passport and has an endorsement by DHS indicating such
employment-authorized status or parole, as long as the period of
endorsement has not yet expired and the employment is not in conflict
with the individual's employment-authorized status or parole. Specific
changes to the form that are being delayed until March 14, 2018 also
include revisions to the Form I-9 Lists of Acceptable Documents, List A
item 5 to replace ``nonimmigrant alien'' with ``individual,'' to
replace ``alien's nonimmigrant'' with ``individual,'' and to add ``or
parole'' after ``status'' in List A item 5.b.(2).
a. Type of information collection: Revised information collection.
b. Abstract: This form was developed to facilitate compliance with
section 274A of the Immigration and Nationality Act, which prohibits
the knowing employment of unauthorized aliens. This information
collection is necessary for employers, agricultural recruiters and
referrers for a fee, and state employment agencies to verify the
identity and employment authorization of individuals hired (or
recruited or referred for a fee, if applicable) for employment in the
United States.
c. Title of Form/Collection: Employment Eligibility Verification.
d. Agency form number, if any, and the applicable component of the
Department of Homeland Security sponsoring the collection: Form I-9,
U.S. Citizenship and Immigration Services.
e. Affected public who will be asked or required to respond:
Business or other for-profit; Individuals or households; State, local
or Tribal Government.
f. An estimate of the total annual numbers of respondents: 78
million employers and 78 million individuals. (The total number of
responses will be only 78 million responses. Each response involves an
employer and an individual who is being hired.)
g. Hours per response:
[square] Time Burden for Employees--10 minutes (.17 hours) total;
[square] Time Burden for Employers--20 minutes (.33 hours) total;
[square] Time Burden for Recordkeeping--5 minutes (.08 hours)
total.
h. Total Annual Reporting Burden: approximately 40,600,000 total
annual burden hours.
D. Overview of Information Collection, Application for Employment
Authorization, Form I-765, OMB Control No. 1615-0040
The IE Final Rule published on January 17, 2017 made minor
revisions to the form instructions to reflect changes made by that rule
that allow spouses of an entrepreneur parolee to request employment
authorization. Those changes to Form I-765 are being delayed until
March 14, 2018.
a. Type of information collection: Revised information collection.
b. Abstract: If implemented, this collection would be used by
individuals who file an application for entrepreneur parole under INA
section 212(d)(5)(A) (8 U.S.C. 1182(d)(5)(A)) and new 8 CFR 212.19.
Such individuals would be subject to biometric collection in connection
with the filing of the application.
This form was developed for individual aliens to request employment
authorization and evidence of that employment authorization. The form
is being amended to add a new class of aliens eligible to apply for
employment authorization, specifically a spouse of an entrepreneur
parolee described as eligible for employment authorization under this
rule. Supporting documentation demonstrating eligibility must be filed
with the application. The form lists examples of relevant
documentation.
c. Title of Form/Collection: Application for Employment
Authorization, Form I-765.
d. Agency form number, if any, and the applicable component of the
Department of Homeland Security sponsoring the collection: Form I-765,
U.S. Citizenship and Immigration Services.
e. Affected public who will be asked or required to respond:
Individuals or households.
f. An estimate of the total annual numbers of respondents:
2,139,523.
This total represents the aggregate estimate for this information
collection, to include the additional estimate of 2,940 respondents
under this rule.
g. Hours per response: The estimated hour per response for Form I-
765 is 3.42
[[Page 31890]]
hours; the estimated hour burden per response for biometric processing
is 1.17 hours; the estimated hour burden per response for Form I-765 WS
is .5 hours; the estimated hour burden per response for passport-style
photographs is .5 hours.
h. Total Annual Reporting Burden: The total estimated annual hour
burden associated with this collection is 8,985,859 hours.
John F. Kelly,
Secretary.
[FR Doc. 2017-14619 Filed 7-10-17; 8:45 am]
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