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A Call To Action For Regulatory Reforms - Make Yourself Heard, Please

by Joseph Whalen

The DHS Final Plan for Retrospective Review of Existing Regulations was finalized as of August 22, 2011, along with a plethora of others. They were submitted to the White House which then announced[1] on August 23, 2011, that these plans were being released. The DHS plan along with many others was posted[2] shortly thereafter. DHS is big. It has seven "public facing agencies" plus the Department itself. The Department has semi-autonomous components broken down into about twenty-one parts. So, in terms of departmental sources from which a regulation may arise, there are up to twenty-nine potential sources. In reality and for most practical purposes, the Department as a whole acting under the authority of the Secretary and the seven public facing agencies are the most likely sources. Of those eight, six components within the Department, take center stage.

Although the DHS Final Plan purports to cover all regulations issued by DHS components, the focus is on the regulations of six operational components with the vast majority of regulatory responsibilities. In descending order from most to least (not meaning small in number or volume-just fewer by comparison), they are:

  • U.S. Citizenship and Immigration Services (USCIS)
  • U.S. Coast Guard (USCG or Coast Guard)
  • U.S. Customs and Border Protection (CBP)
  • Federal Emergency Management Agency (FEMA)
  • U.S. Immigration and Customs Enforcement (ICE)
  • Transportation Security Administration (TSA)
One of the criteria that the Plan puts forth concerning which regulations will get consideration is to give a regulation some time to show what it can do. The Plan generally calls for waiting five years between assessments but that is not etched in stone. Interim rules are specifically mentioned as up for consideration. In addition, any rule that was quickly promulgated could also be revisited sooner than five years. Some regulations might be trumped by an act of Congress or a judicial or administrative precedential decision. Still others might have been too hastily promulgated and suffer from "growing pains" or go through an "awkward stage" and thereby, need to be fine-tuned shortly after publication. The Plan sets a basic framework for the future but it is also a specific reaction to an Executive Order and must comply with the mandate to actually put the review into action. The Plan describes some of the recent actions that were already happening in the normal course of business but identifies additional areas now being addressed or scheduled to be addressed as a result of the input recently received.

As one might expect the majority of regulations under review are immigration-related. Three of the six main regulatory DHS components are USCIS, ICE and CBP, but TSA and USCG work closely with the immigration agencies and help support their missions. The DHS Plan identifies some important areas that the immigration stakeholder communities should continue to contribute ideas towards. Some items identified have already happened. A bunch of obsolete regulations have been dumped and others have been adjusted as part of the USCIS Business Transformation Rule[3] published on August 29, 2011.

Some of the other areas identified in the Plan which perhaps could use further input include, but are not limited to, these specifically identified comments:

  • A comment recommended that the regulations governing the administrative appellate jurisdiction in immigration matters be reformed. USCIS is working on this.
  • Other 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).
  • Other 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.
  • 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.
  • Comments were submitted relating to ICE's SEVIS regulations.
  • DHS received comments related to the processing of asylum applications, such as employment authorization under 8 C.F.R. 208.7 and the expansion of various other categories of persons eligible for work authorizations under 8 C.F.R. 274a.12 (E and L spouses).
  • One comment extensively discussed the various administrative procedures applicable when an arriving traveler makes a claim of citizenship. This is under review and involves USCIS, CBP, ICE and EOIR.
  • CBP's Global Entry final rule is currently under development, and DHS anticipates issuance of the final rule in the near future.
  • A comment recommended that CBP eliminate the National Security Entry and Exit Registration System (NSEERS) program.
  • DHS received another comment recommending that DHS and DOJ coordinate their regulations regarding representation of aliens and appearances in immigration cases-DHS stated that it will will consult DOJ.
  • One comment recommended that USCIS promulgate regulations for the Systematic Alien Verification for Entitlements (SAVE) and E-Verify programs.
When rules or other notices are published, the agency will include specific contact information. This is often through submitting comments by snail mail, online at or via e-mail to OIRA or USCISFRComment@ Another place to check for specific contact information is the Regulatory Agenda on (you can find e-mail addresses and phone numbers here-but older "historical" items are likely outdated).



2 (main page) The DHS Plan is at the following link:


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.

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