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.