82 FR 31887 - International Entrepreneur Rule: Delay of Effective Date

DEPARTMENT OF HOMELAND SECURITY

Federal Register Volume 82, Issue 131 (July 11, 2017)

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.''

[Federal Register Volume 82, Number 131 (Tuesday, July 11, 2017)]
[Rules and Regulations]
[Pages 31887-31890]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-14619]



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Rules and Regulations
                                                Federal Register
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This section of the FEDERAL REGISTER contains regulatory documents 
having general applicability and legal effect, most of which are keyed 
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under 50 titles pursuant to 44 U.S.C. 1510.

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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]
 BILLING CODE 9111-97-P