Interested Persons Can Petition DHS for Regulatory Changes15 Aug 2016
The U.S. Department of Homeland Security (DHS) issued an interim final rule setting forth a process for the public to petition the DHS for regulatory changes. This interim rule is scheduled to take effect on August 22, 2016.
Background on the Regulatory Process
Regulations are, in essence, the interpretation by administrative agencies of statutes passed by Congress. Regulations are meant to implement statutes consistent with the letter of the law and the intent of Congress in passing the law.
By law, federal government agencies must grant the public the right to provide suggestions for new regulations and/or changes to existing regulations. The purpose of this interim rule is to set forth the procedure for providing such input to the DHS.
Regulatory Changes to Immigration
Many changes in immigration practice arise from changes in regulations, rather than changes passed into law by Congress. Recent examples of regulatory changes include the modifications made to the STEM optional practical training (OPT) program and the ability for qualifying H-4 spouses to apply for employment authorization documents (EADs).
Process to Submit a Petition for Rulemaking to DHS
This interim final rule allows an individual to request a new regulation and/or changes to or the repeal of an existing regulation. In submitting such a request, it is necessary to include the words “Petition for Rulemaking” or “Rulemaking Petition” prominently in the document. The request must also include the name of the petitioner (i.e. the person making the request) and any contact information the petitioner wishes to include. All immigration related requests must be mailed to:
Attn: Regulatory Affairs Law Division
U.S. Department of Homeland Security
Office of the General Counsel, Mail Stop 0485
245 Murray Lane, SW
Washington DC 20528-0485
Content of Petition for Rulemaking
In order to assist the DHS in understanding the nature of the request, the petition should specify, to the extent possible, the regulation/s the petitioner wishes to see changed or specific regulations that the petitioner wishes to propose. The petition should further explain the basis for the request, such as:
- The problem that the petitioner seeks to address
- An explanation of how the proposed change or addition would fix the problem
- Relevant data to support the petitioner’s position
- A description of the substance of the request
- Citation to existing laws or regulations (if any) to evidence the authority of the DHS to implement the request
DHS Options in Response to a Petition for Rulemaking
In response to a petition for rulemaking from the public, the DHS has the option to seek public comment as part of its decision making process. The DHS may respond to such requests by letter or by publication of the new / revised rule in the Federal Register.
The DHS has wide-ranging authority to deny such petitions, and petitions can be granted or denied in whole or in part. The DHS may deny a petition for a variety of reasons, including if the DHS determines the request is contrary to legal authority, is not supported by relevant information, or involves an issue that falls outside of the priorities and/or available resources of the DHS.
The option to provide input for regulatory change is a powerful tool for the public. It should be clear from the instructions provided by the DHS, however, that such requests must be well thought out, specific, legally permissible, and well supported, in order to have any legitimate hope for success.
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