A great deal of confusion concerns what federal agencies may do. Before an agency may do anything, there must be a Congressional statute authorizing the agency to act. Congress might pass a law that provides:
“The status of an alien who was inspected and admitted or paroled into the United States or the status of any other alien having an approved petition for classification as a VAWA self-petitioner may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if . . .” [Emphasis added]
The statute provides the broad grant of authority, but leaves the specific mechanism for carrying it out to the discretion of the Attorney General “under such regulations as he may prescribe.” (The Secretary of DHS has replaced the Attorney General as the cabinet official with authority to issue such regulations.)
DHS must go through the “public notice and comment” process when promulgating lawful regulations. This means they must research the law, including the statute, the legislative history, and existing case law. Once they have done this, they must draft a proposed regulation, with a detailed explanation of what they propose to do and their authority for doing it.
When they feel they have complied with all regulatory requirements, such as the Paperwork Reduction Act, the Unfunded Mandates Reform Act, and the Small Business Regulatory Enforcement Fairness Act, they send their proposal to the Office of Management and Budget (OMB) for review and approval. If OMB finds that the language is not clear, or that the justification for the proposed regulation is not persuasive, they will return it to the agency for revision. Only when the proposed regulation has been approved by OMB may the agency then publish it for public comment. Agencies often spend months and even years getting to this point.
When the agency receives final approval from OMB, they next publish their proposal in the Federal Register. A notice typically will provide for a sixty-day comment period. The public may offer comments concerning the regulation.
The agency must read and consider all comments submitted and summarize them in their notice of final rulemaking. They must explain why they adopted or rejected the public comments.
The agency must submit their proposed notice of final rulemaking, with the public comments, to OMB for final approval. If OMB approves the final regulation, the agency may then publish it in the Federal Register as a Notice of Final Rulemaking. Usually the final rule will take effect 30 days following such publication.