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Regulatory Reform--Are you DOING Something, Anything About It? Get Involved in the Retrospective Regulatory Review!

by Joseph P. Whalen

The President has committed himself to forcing Executive Agencies to get their acts together. He issued the Memorandum on Transparency and Open Government on January 21, 2009, it has been followed up with further directives and Executive Order 13563.

Executive Order 13563 of January 18, 2011, calls on each executive agency to prepare a preliminary plan under which it will periodically review its existing significant regulations and determine whether any should be modified, streamlined, expanded, or repealed so as to make the agency's regulatory program more effective or less burdensome in achieving its regulatory objectives. The agencies were directed to submit a preliminary plan for compliance within 120 days of that E.O.

In keeping with that directive, the agencies as far as I can tell, have complied, most on the very last day. The Whitehouse has received a plethora of such "Preliminary Plans" and has posted them, 25 such plans as of this writing, on the internet at: and those executive departments and agencies have also posted these same plans on their own websites' "Open Government" pages. The Open Government Directive issued on December 8, 2009, called on the Chief Technology Officer and Chief Information Officer to create an Open Government Dashboard to assess the state of open government in the Executive Branch. The Dash board tracks agency progress on the deliverables set out in the Directive, including each agency's Open Government Plan. A graphic "scorecard" is posted and there a link to the original scorecard for comparison and to show progress to date.

The ones most likely of interest to the immigration law community will be the Preliminary Plans from DHS, DOS, DOJ, and DOL.

In preparing the Preliminary Plans, IdeaScale was used by these folks: [Information is still accessible for viewing.] [It appears everything was removed.]

You can find their associated Federal Register Notices and the comments about this effort and more at:!home

For the lazy or technologically impaired or challenged, here are the primary documents just waiting for you to make a comment.

DHS!documentDetail;D=DHS-2011-0015-0051and!searchResults;a=DHS;rpp=10;po=0;s=retrospective+review for more.

DOS!documentDetail;D=DOS-2011-0079-0001and!searchResults;a=DOS;rpp=10;po=0;s=retrospective+review for more.

DOJ!documentDetail;D=DOJ-LA-2011-0016-0001and!searchResults;a=DOJ;rpp=10;po=0;s=retrospective+review for the earlier Notice and its comments.

DOL!documentDetail;D=DOL_FRDOC_0001-0039and!searchResults;a=DOL;rpp=10;po=0;s=retrospective+review for more.

Use the "submit a comment" feature (it's a big orange button in the upper right). You can just type a message or can upload a document or both. I've uploaded plenty already for DHS and DOS. Last I checked DHS was posting almost immediately (less than 24 hrs), the jury is still out for DOS. I have not posted for anyone else yet. I don't know if there is a size limit for the file one uploads, my largest is 60 pages.

Please join the discussion. Your voice can be heard so, if you have something to say, say it now, please.

In the DHS Preliminary Plan, the comments to date were discussed and broken down into four main blocks. The Immigration and Nationality comments dominated with over half the comments being on this topic. At least five items of particular interest to me are in there. Have you got something to add? What are you waiting for?

From the DHS Plan:

"3. Breakdown of Comments, by Regulation Category

For purposes of this Plan, we grouped DHS regulations into four broad functional categories: (a) security, (b) maritime safety and environmental protection, (c) immigration and border management, and (d) emergency management and assistance. We discuss the public comments in the context of those categories. We discuss only three categories below, however, because DHS did not receive any substantive public comments related to maritime safety & environmental protection. *****

b. Immigration and Border Management

Approximately half of the comments received related to the nation's immigration laws and policies. Many of the immigration-related comments were beyond the scope of regulatory efficiency and dealt with the status of individual immigration cases, sought relief under the current system, or requested clarification on immigration law.

Other comments fell within areas where USCIS has already begun conducting reviews of its regulations. For example, DHS received comments recommending the need to remove the administrative denaturalization regulations, and USCIS has incorporated this suggestion into its larger, ongoing plan for its Immigration Benefits Business Transformation final rule. Another comment recommended that the regulations governing the administrative appellate jurisdiction in immigration matters be reformed. USCIS plans to consider these comments more closely during its current reviews.

DHS also received comments suggesting that certain areas of immigration regulations should be modified, streamlined, expanded, or repealed. For example, DHS received comments suggesting revisions to various visa categories, such as employment-based categories (e.g., E, H, L, and O) and student categories (e.g., F, J, M, including optional practical training (OPT)), and traders and investors (i.e., E). The Department also received comments regarding certain naturalization provisions that commenters asserted were outdated or obsolete. Regarding employment-creation immigrant visa (EB) categories, DHS received comments requesting clarification on issues related to material changes for regional centers. DHS also received comments related to the processing of asylum applications that covered a range of issues such as employment authorization and membership in a particular social group. USCIS is reviewing these comments more closely and has preliminarily identified areas within its regulations to further evaluate for retrospective review.

One comment recommended ICE revise its regulations to provide that asylum seekers who have established credible fear should not be detained absent concerns about identity, flight risk, or security. ICE plans to review this comment further to determine whether the regulations can be modified. Another comment suggested that ICE regulations regarding the Student and Exchange Visitor Information System (SEVIS) be updated to remove outdated non-SEVIS school procedures from the regulations, since, as of 2003, all schools should be enrolled with SEVIS. ICE is reviewing this comment more closely to determine the appropriateness and scope of retrospective review for SEVIS regulations.

Regarding CBP regulations, only a few relevant comments were received. One comment suggested that CBP merge titles 8 (immigration) and 19 (customs) of the Code of Federal Regulations (CFR) to eliminate redundant regulations and to have one set of regulations that covers immigration and customs. To the extent permissible by law and operationally feasible, CBP will continue to review its regulations to improve consistency between titles 8 and 19. Another commenter suggested that CBP modify the documentation requirements for used vehicles in 19 CFR Part 192 to cover the situation in which a new vehicle, imported on a duty-paid basis and where title was not transferred to the ultimate purchaser, needs to be exported. CBP plans to research this comment further to determine whether the regulations can be modified to address this concern."

"Immigration & Border Management"

DHS also issues regulations that administer immigration and citizenship benefits, secure and manage our borders, and regulate people and goods entering and exiting the United States. CBP, USCIS, ICE, and NPPD/United States Visit and Immigrant Status Indicator Technology (US-VISIT) promulgate immigration regulations. CBP, along with Coast Guard, ICE, and NPPD/US-VISIT, promulgate regulations that address border management. The primary factor that will inform the DHS review of immigration and border management regulations will be the degree to which operational and other efficiencies are achieved, consistent with statutory requirements and DHS's obligation to enforce the law.

Approximately half of the comments DHS received in response to our solicitation of public comments regarding retrospective review raised immigration issues. While commenters to our March 14th Federal Register notice did not cite to any particular data supporting a need for change, commenters consistently indicated confusion and frustration with certain immigration matters. The DHS regulatory process is not the mechanism to change provisions of the Immigration and Nationality Act or address concerns about specific immigration benefits; however, the DHS regulatory process can seek to reduce regulatory burdens.

Guided by the public comments, with respect to immigration and border management regulations, DHS will seek to maximize efficiencies by streamlining processes, clarifying requirements, implementing technological advancements, and reducing paperwork burdens thereby reducing compliance costs, eliminating redundancies, and reducing confusion."

About The Author

Joseph P. Whalen Is not an attorney. He is a former government employee who is familiar with the INA. His education is in Anthroplogy with a concentration in Archaeology and has both a BA (from SUNY Buffalo) and an MA (from San Francisco State University) in Anthroplogogy. He previously worked as an Archaeologist for the U.S. Forest Service before becoming an Adjudicator with INS which became USCIS.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.