This week I learned that the Entrepreneur Parole Rule which was finalized in January and which goes into effect in mid-July was sent back for review to the Office of Management and Budget by USCIS. It is not clear yet what the basis is for sending the rule back or if this is going to delay the roll out in six weeks. But given the hostility members of the Administration have expressed about the use of the parole power by the President, it is reasonable to be concerned regarding whether the program will roll out on time.
But the Trump Administration needs to be careful about how it proceeds here. They cannot kill this rule without going through a new rulemaking process. And delaying the implementation is also something that is not completely discretionary. As has been the case with every unlawful immigration-related initiative introduced by this White House, they can expect to have to defend themselves in court. And even an attempt to kill this rule by initiating a new rulemaking process (which would likely take at least a year) is not a sure bet. The Administration would have to demonstrate to a judge that it had a strong reason to overturn the prior rule. Remember, one of the requirements for issuing a final rule is demonstrating that the rule has a strong policy reason supporting its implementation. It’s not easy to turn around immediately and say that policy justification was invalid. So trying to stop this rule is not so easy.
The smart move for the White House would be let this one go. Entrepreneurs are job creators and explaining to the public why you’re trying to force startup founders to leave the country is not going to be easy. You’re going to find a lot of traditional allies in the GOP nervous about endorsing scrapping this rule. Also, the reason anti-immigrants are offering for opposing this rule and others like it is that parole authority gives too much power to the President. Yet this is the same Administration arguing for just that type of power when it comes to the Muslim ban and other immigration initiatives. No one wants to admit that all of these initiatives are about one thing – a dislike of immigrants. And with a public that is increasingly pro-immigration, that’s not good politics.
Ask members of the public about whether retaining startup founders versus kicking them out is a good move, and I’ll bet you see an even more striking level of support.
Latest posts by Greg Siskind (see all)
- Siskind Summary – National Venture Capital Association v. Duke(filed 9/19/2017) - September 19, 2017
- Guest Post – The Legal Workforce Act (H.R. 3711) – Pro-Immigration Advocates, Be Sure to Look This Gift Horse in the Mouth by Anthony Weigel - September 18, 2017
- Siskind Susser Advisory on the Revocation of DACA - September 5, 2017