A common practice of President Biden’s Department of Homeland Security (DHS) is to disregard the constraints of our immigration laws in order to accomplish the administration’s preferred immigration policy. I have detailed a number of examples throughout Biden’s term, including the abusive use of Temporary Protected Status (TPS) to grant amnesty-lite to hundreds of thousands of illegal aliens, an unlawful categorical application of the parole authority to allow visa-less aliens into the country, and impermissibly giving U.S. Citizenship and Immigration Services (USCIS) asylum officers (instead of immigration judges) the ability to grant asylum to unlawful border crossers.
Emboldened by these past examples, DHS has taken a new regulatory action that all but signals the Biden administration does not believe the rules apply to it. On May 3, USCIS announced a temporary final rule (TFR) that automatically extends the validity period of a work permit from 180 days to 540 days for certain applicants seeking to renew their work permits. Many of the work permit categories eligible for this auto-extension are earmarked for illegal aliens, including those who simply filed an asylum application that the government has yet to adjudicate and those with TPS.
If last week’s press release is the first time you heard about this rule, that’s because DHS published it without giving the American public any advance notice, in violation of the Administrative Procedure Act (APA). DHS also failed to show up to a scheduled meeting on April 22 with myself and Jessica Vaughan while the rule was still under the review of the White House’s Office of Information and Regulatory Affairs (OIRA), as required under Executive Order (EO) 12866.
EO 12866 Meeting No-Show. I will start with the Biden administration’s refusal to convene the 12866 meeting with the Center that it scheduled and confirmed because of how brazen that action is in the scheme of regulatory compliance.
President Bill Clinton issued EO 12866 in 1993 with the preamble saying, “The American people deserve a regulatory system that works for them, not against them. ... We do not have such a regulatory system today.” The preamble continues, “The objectives of this Executive order are to enhance planning and coordination with respect to both new and existing regulations; to reaffirm the primacy of Federal agencies in the regulatory decision-making process; to restore the integrity and legitimacy of regulatory review and oversight; and to make the process more accessible and open to the public.” (Emphasis added.)
Section 6(a) of the EO establishes the responsibilities of the executive branch when pursuing rulemaking, notably that “Each agency shall (consistent with its own rules, regulations, or procedures) provide the public with meaningful participation in the regulatory process. In particular, before issuing a notice of proposed rulemaking, each agency should, where appropriate, seek the involvement of those who are intended to benefit from and those expected to be burdened by any regulation (including, specifically, State, local, and tribal officials).” (Emphasis added.)
In sum, EO 12866, which is still in effect and binding on the executive branch, is meant to empower the American public to be engaged with the federal government during the rulemaking process.
In practice, this EO has been interpreted to allow any member of the regulated public to request a meeting with OIRA and the relevant agency to share their views (for or against) any regulation under OIRA review. Opponents of President Trump’s immigration policies frequently submitted requests for EO 12866 meetings for the numerous immigration regulations we were developing, and every time, we staffed those meetings with career subject matter experts from the originating agency (in my case, USCIS, and also DHS and OIRA). The government is not required to respond to anything raised at these meetings but they are required to show up to a scheduled meeting and let the stakeholder say his or her piece for up to 30 minutes.
The Center had a confirmed EO 12866 meeting for the “Temporary Increase of the Automatic Extension Period of Employment Authorization and Documentation for Certain Renewal Applicants” rule on Friday, April 22, at 3 p.m., the date and time set by the OIRA staffer reviewing the rule on behalf of the White House. The confirmed scheduling of this meeting is public record and in the period between confirming the meeting and the scheduled meeting date, I received numerous emails from aliens with expiring work permits seeking guidance on when the rule will publish and who will benefit. I include this anecdote only to show that people were aware that the Center had this meeting scheduled.
Yet, as detailed by Stephan Dinan in the Washington Times, Vaughan and I tried for 30 minutes to log into the call but OIRA never opened the conference line; numerous emails to our OIRA contact that day and subsequently have been ignored. As I mentioned above, the government only had to send a few staffers to listen to Vaughan's and my spiel for 30 minutes and it would have satisfied their obligations under EO 12866. The brazen no-show is baffling given how easy it is to comply with the meeting requirement, not to mention disrespectful.
Whether the Biden administration likes it or not, opponents of its policies, including former officials from the previous administration, are members of the regulated public and entitled to the same opportunities afforded under EO 12866 as its supporters. Imagine the scandal that would have ensued in the media if Trump’s DHS had behaved the same way.
Bypassing Notice and Comment Violates the APA. If DHS and OIRA had appeared at the EO 12866 meeting, I would have told them that issuing this regulation as a temporary final rule violates the APA’s “notice and comment” requirements. According to the APA, before the executive branch makes a regulatory change it generally must first publish a notice of proposed rulemaking (NPRM) in the Federal Register to “give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation.”
An exception to this “notice and comment” requirement exists “when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” A January 2016 Congressional Research Service report entitled, “The Good Cause Exception to Notice and Comment Rulemaking: Judicial Review of Agency Action” concedes that, “What precisely constitutes good cause is not explicit from the APA’s text.” However, the CRS explains that the good cause exception is not a broad, catch-all authority and has constraints, namely that it is applicable for (1) emergencies; (2) “contexts where prior notice would subvert the underlying statutory scheme”; and (3) laws where Congress expressly waives the APA requirement.
What basis does DHS claim it can auto-extend work permits without first seeking notice and comment? The USCIS press release makes no reference to utilizing a good cause exception, but USCIS director Ur Jaddou is quoted as saying, “As USCIS works to address pending [work permit] caseloads, the agency has determined that the current 180-day automatic extension for employment authorization is currently insufficient. This temporary rule will provide those [aliens] otherwise eligible for the automatic extension an opportunity to maintain employment and provide critical support for their families, while avoiding further disruption for U.S. employers.” Reporters received a similar justification from unnamed political appointees, with the Wall Street Journal being told, “We need time to get back to normal or better than normal on our processing times, and no one should lose their ability to work because we need that extra time,” and the Washington Times summarized the USCIS justification as, “The agency said the good cause was the hardship immigrants would face over lost jobs.”
Does this explanation pass muster under the “emergencies” prong of good cause? As explained in the CRS report, the answer is a resounding “No.” Citing a Fifth Circuit case, CRS writes, “the ‘mere existence’ of a deadline is usually insufficient to establish good cause.” Citing Ninth Circuit and D.C. Circuit cases, CRS explains, “Instead, some ‘exigency’ is required, independent of the deadline itself, which merits dispensing with [the notice and comment] requirements.” Using the same D.C. Circuit case, CRS hammers home a critical restriction: “Importantly, courts have precluded efficiency goals and concern for agency convenience from qualifying as exigencies.”
The official position of DHS is that they have “good cause” because USCIS adjudicators are overwhelmed with the volume of work permits to process, both initial ones and renewals. This is nothing new as the USCIS press release notes that for “several years USCIS has been in a precarious financial situation that has impaired the efficient completion of caseloads.” There are two key aspects of this statement that undermine any claim to good cause. First is the reference to “several years”, which shows that the agency has struggled with workloads for some time, not just suddenly and unexpectedly. Additionally, the use of “efficient” as part of the stated goal is precisely one of the words used in the CRS report to show when good cause is not justified.
Given the scrutiny and pushback the career attorneys at DHS and USCIS gave us with every immigration policy the Trump political team pursued, I find it hard to believe not a single one of them was familiar with the above-mentioned case law or the CRS report, which is easily found from a google search of “notice and comment good cause exception”. Did the political attorneys override objections that the good cause argument lacked merit or did no one bother raising it because there is support for the objective this rule purports to achieve?
Unironically, the USCIS press release also explains the need for the rule by stating, “In 2021, before USCIS could recover from these fiscal and operational impacts, there was a sudden and dramatic increase in EAD initial and renewal filings.” You don’t say! President Biden took office in January 2021 and his administration has accelerated the number of new work permits for illegal aliens through TPS initial designations and unlawful “redesignations”, categorical parole of un-vetted Afghans and visa-less Ukrainians, and a continuation of DACA, just to name a few examples.
What happened next was predictable. USCIS was already overworked, but the Biden administration intentionally compounded the problem by allowing close to a million illegal aliens the ability to obtain a work permit. The political pressure to approve initial work permits pushed the renewals down the line and very quickly the clock on those documents began to run out. This led to outcry and pressure from the immigration attorneys and business groups who utilize work-authorized aliens. DHS is trying to avoid accountability by extending existing work permits, but USCIS is never going to catch up because Secretary Mayorkas will undoubtedly continue to allow more illegal aliens the ability to get a work permit.
There is no good cause to change the length of work permits without giving the American people the opportunity to weigh in. This rule should be challenged and successfully struck down (or enjoined) for violating the APA. And any alien whose work authorize lapses as a result of delayed adjudication of a work permit renewal should cast the blame directly at Secretary Mayorkas.