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  • News: DHS Delay the Effective Date of the International Entrepreneur Final Rule

    [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]
    
    
    
    ========================================================================
    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. 
    
    ========================================================================
    
    
    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.
    
    -----------------------------------------------------------------------
    
    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. ***'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
    

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