DHS’s Path to Executive Order Compliance Becomes Trickier with Release of its 2017 Unified Agenda Update
The Unified Agenda Update shows that DHS’s path for complying with President Trump’s one-in, two-out Executive Order 13771 has become a tight needle to thread. The Update lists over a dozen DHS rules in Final Rule Stage. Within USCIS alone, there are four rules in the Final Rule stage and another three rules in the Proposed Rule Stage.
New additions to DHS/USCIS list of regulations in the Final Rule Stage include
- The EB-5 Immigrant Investor Program Modernization rule which previously was in the proposed rule stage.
- An H-2B visa rule that was not previously listed.
The 2017 Update also placed a new planned EB-5 rule on its Agenda which would makes changes to the EB-5 Immigrant Investor Regional Center Program.
Prior to issuing rules, DHS is required by EO 13771 to designate two rules for repeal for each final rule it plan to issue. In addition to this requirement, the EO also requires that DHS
- Fully estimate the incremental costs of each rule it plans to issue.
- Ensure that the rules that are being repealed are of at least equal cost to the rules the Department plans to issue.
I find it interesting that USCIS did not complete a cost-benefit analysis for the EB-5 rule. I guess if they can ignore settled law then ignoring this new stuff is a breeze.