1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL VENTURE CAPITAL ASSOCIATION, et al. , Plaintiffs, v. Civil Action No. 17-1912 (JEB) ELAINE DUKE, Acting Secretary, U.S. DEPARTMENT OF HOMELAND SECURITY, et al. , Defendants.

MEMORANDUM OPINION Elections have consequences. But when it comes to federal age ncies, the Administrative Procedure Act shapes the contour s of those consequences. This case involves the Department of Homeland Security’s decision t o delay the implementation of an Obama-era immigration rule, the International Entreprene ur Rule, 82 Fed. Reg. 5,238 (Jan. 1 7, 2017). The Rule would have allowed certain foreign entrepr eneurs to obtain immigration “pa role” — that is, to temporarily enter the United States despit e lacking a visa or green card. It was finalized in the waning hours of the Obama administration a nd was set to take effect 180 days later, on July 17, 2017. On the eve of that date, however, the Department issued a new rule (“t he Delay Rule”) delaying the effective date of the original one for another eight months, un til March 14, 2018. The agency did so, however, without providing notic e or soliciting comment fro m the public, as the APA generally requires. Plaintiffs brought suit, alleging that the agency lacked good cause to dispense with the APA’s strictures and tha t the Delay Rule was therefore invalid. Having now reviewed both sides’ Motions for Summary J udgment, the Court agrees and will vacate the Delay Rule.2 I. Background The controversy boils down to tw o competing rules. The first w ould have allowed certain foreign entrepreneurs to temporarily enter the United S tates. The second, promulgated six months later, delayed that rule from taking effect. The Co urt discusses each in turn and then briefly recounts this suit’ s procedural history.
A. The International Entrepreneur Rule The Department of Homeland Secur ity promulgated the Internatio nal Entrepreneur Rule (“IE Final Rule”) to “encourage in ternational entrepreneurs to create and develop s tart-up entities with high growth potential in the U nited States.” 82 Fed. Reg. at 5238. The Department believed that attracting foreign ent repreneurs would “benefit t he U.S. economy through increased business activit y, innovation, and dynamism.” Intern ational Entrepreneur Rule, 81 Fed. Reg. 60,129, 60,131 (Aug. 31, 2016) (Notice of Proposed Ru lemaking). Before the issuance of the regulation, forei gn entrepreneurs lacked a clea r-cut avenue for entry into this country. Id. at 60,151-52 & n.52 (ci ting Nina Roberts, For For eign Tech Entrepreneurs, Getting a Visa to Work in the U.S. is a St ruggle, The Guardian (Sept. 1 4, 2014)). The United States had no dedicated visa category for f oreign entrepreneurs, and other visa options were frequently unavailable to that group. Id. The executive branch, however, cannot unilaterall y create a new visa category, see 8 U.S.C. § 1101(a)(15), so it turned to a m ore temporary solution for immi grant entrepreneurs: parole. See 82 Fed. Reg. at 5,244. “Parole” — the French sour ce of which term derives from giving one’s word — allows a fore ign national to be physically present in the United States for a specific, temporary period, ra nging from days to years. See, e .g., Leng May Ma v. Barber, 357 U.S. 185, 190 (1958). Unlike visas, parole is not an admission to the United States and gives a3 recipient no formal immigra tion status. See 8 U.S.C. §§ 1101(a )(13)(B), 1182(d)(5)(A). The Immigration and Nationality Act (INA) instead grants the Secret ary of Homeland Security the discretionary authority to parole individuals into the United S tates on a case-by-case basis. Id. § 1182(d)(5)(A). DHS views that po wer as “expansive.” 82 Fed. R eg. at 5243. Although it may grant parole only for urgent hum anitarian reasons or in cases o f “significant public benefit,” Congress has defined neither term. Id. at 5,242-43; see also 8 U.S.C. § 1182(d)(5)(A). In promulgating the IE Final Rule , DHS latched onto the latter criterion. It sought to provide guidance for its line-l evel adjudicators as to when par ole for foreign entrepreneurs would provide a “significant public benefit” to the country. See 82 Fed. Reg. at 5,239. As the agency explained, adjudicating applica tions for that group often prove d complex, so it “decided to establish by regulation the criteria for the case-by-case evalu ation” of their applications. Id. at 5,238. The agency also established “application requirements t hat are specifically tailored to capture the necessary informati on for processing parole request s on this basis.” Id. In so doing, DHS expected “to facilitate the us e of parole” for foreign entr epreneurs and provide a “transparent framework” by whic h it would exercise its discreti on. Id. To be “considered for a discre tionary grant of parole” under th e Rule, an entrepreneur “would generally need to demonstrate the following”:
1. The applicant must have formed a new start-up entity in the Uni ted States within 5 years of the application;
2. The applicant must a) possess at least a 10% ownership interestin the business; and b) “have an active and centr al role” in its operations and future growth; and
3. The applicant must validate the business’s poten tial “for rapid growth and job creation” by showing a) it has received at least $250,000 from established U.S. investors; or b) it has rece ived at least $100,000 in grants fr om government entities.4 Id. at 5,239. The Rule also create d “alternative criteria” for meeting the final prong. Id. If an alien partially met one of the i nvestment thresholds, she could provide “additional reliable and compelling evidence” of her company’s potential for rapid growt h and job creation. Id. Applicants who met the criteria (along with spouses and minor c hildren) could be considered for discretion ary parole of up to 30 months. Id. T hose individuals could also apply for re-parole for up to 30 additiona l months if they met certai n conditions. Id. at 5,240. Importantly, however, satisfyi ng the above criteria did not gua rantee parole. Rather, the IE Final Rule streamlined the agency’s tr eatment of entrepreneurs and gu ided how it would interpret the “significant public benefit” p rong of the test. Agents would s till need to assess applications on a case-by-case basis a nd retained the ultimate discretion as to w hether to approve parole. Id. at 5,239. In making such discretionarydeterminations, USCIS woul d consider all relevant information, including any crimina l history or other serious ad verse factors that could weigh against admission. Id. DHS, moreov er, retained its authority to terminate parole at any time, consistent with existing re gulations. Id. at 5,243. In such c ases, the individual would be “restored to the status that he or she had at the time of parol e.” Id. (quoting 8 C.F.R. § 212.5(e)); see also 8 U.S.C. § 1182(d)(5)(A). The agency solicited and rece ived 763 comments on its proposed rule. See 82 Fed. Reg. at 5,244. In response, it meaningfu lly revised the final versi on, including changing the minimum investment amount, the definiti on of an entrepreneur, and the d efinition of a start-up entity. Id. at 5,244-5,273. This final rule was set to take effect July 17 , 2017, 180 days from its publication in the Federal Register. I d. at 5,242. DHS determined that th is 180-day period would give USCIS “a reasonable period to ensure resources are in place to process and adjudicate5 Applications for Entrepreneu r Parole filed . . . under this rul e without sacrifici ng the quality of customer service for all USCIS stakeholders.” Id.
B. The Delay Rule Of course, times change and so do a dministrations. On January 25, 2017, President Trump issued an Executive Order targeting current immigration p ractice. See Border Security and Immigration Enforcement Imp rovements, Exec. Order No. 13,76 7, 82 Fed. Reg. 8,793 (Jan. 25, 2017). As relevant here, the O rder announced that it “is t he policy of the executive branch to end the abuse of parole” of alie ns in the United States. Id. a t 8,795. Section 11(d) of the Order required the Secretary of Homeland Security to “take appropriat e action to ensure that parole authority under section 212(d )(5) of the INA (8 U.S.C. § 1182(d )(5)) is exercised only on a caseby-case basis in accordance with the plain language of the stat ute, and in all circumstances only when an individual demonstrates urgent humanitarian reasons or a significant public benefit derived from such parole.” Id. at 8,796. For the next six months, the Dep artment stayed silent. Six da ys before the IE Final Rule would take effect, however, USCIS issued a superseding “Delay R ule.” 82 Fed. Reg. 31,887 (July 11, 2017). This latter Rule postponed the International Entrepreneur Rule’s effective date by eight months, to March 14, 2018. Id. at 31,887. DHS issued the Delay Rule, however, without offering the public advanc e notice or an opportunity to comment, claiming that there was good cause to jettison the APA’s requirements on that score. I d. at 31,887-88. Instead, it provided a short window for comme nts only after the Delay Rule took effect. Id. at 31,887. DHS further indicated that, pursuan t to the Executive Order, th e agency was “highly likely” to rescind the IE Final Rule . Id. at 31,888. Its new Delay Rule was designed to bridge the gap,6 such that the Obama-era Rule would never take effect. Id. (see king “to delay the IE Final Rule while DHS considers resc inding the rule”).
C. Procedural Background Plaintiffs include two forei gn nationals (Atma and Anand Krishn a), two U.S. businesses (Omni Labs, Inc. and Peak Labs L.L.C., d/b/a Occasion), and the National Venture Capital Association, which is an organ ization of individuals who “frequ ently invest in businesses founded by foreign entrepreneurs.” Pl. MSJ at 4. All claim th at the Delay Rule has seriously injured their businesses or investments. Id. Two months after its issuance , Plaintiffs brought this suit cha llenging it as invalid, see Compl., ¶ 11, and moved for a prelim inary injunction ten days l ater. See ECF No. 12. The Court held oral argument on the motion on October 20, 2017. In a conference call shortly thereafter, the parties agreed t hat there were no factual dispu tes for the Court to resolve, such that the case could be decided expedi tiously on summary judgment. S ee Minute Order of October 25, 2017. Plaintiffs thus agreed to ho ld their motion for a pr eliminary injunction in abeyance in exchange for the Government’s submitting its summary-judgment b riefing on an expedited basis. Id. The Court now considers the pa rties’ Cross-Motions for Sum mary Judgment.
II. Legal Standard The parties have cross-moved for summary judgment on the admini strative record. The summary-judgment standard set f orth in Federal Rule of Civil Pr ocedure 56(c), therefore, “does not apply because of the limited rol e of a court in reviewing t he administrative record.” Sierra Club v. Mainella, 459 F. Supp. 2d 76, 89 (D.D.C. 2006); see als o Bloch v. Powell, 227 F. Supp. 2d 25, 30 (D.D.C. 2002), aff’d, 348 F.3d 1060 (D.C. Cir. 2003). “[T]he function of the district court is to determine whether o r not as a matter of law the evi dence in the administrative record7 permitted the agency to make the decision it did.” Sierra Club , 459 F. Supp. 2d at 90 (quotation marks and citation omitted). “Summary judgment is the proper m echanism for deciding, as a matter of law, whether an agenc y action is supp orted by the adm inistrative record and consistent with the [Administrative Procedur e Act] standard of review.” L oma Linda Univ. Med. Ctr. v. Sebelius, 684 F. Supp. 2d 42, 52 (D.D.C. 2010) (citation omitte d), aff’d, 408 Fed. App’x 383 (D.C. Cir. 2010). The Administrative Procedure Act “sets forth the full extent of judicial authority to review executive agency action f or procedural correctness.” FC C v. Fox Television Stations, Inc., 556 U.S. 502, 513 (2009). It requires courts to “hold un lawful and set aside agency action, findings, and conclusions” that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). While the typi cal case proceeds as an “arbitrary and capricious” inquiry int o agency action, 5 U.S.C. § 706(2)(A ), the Court need not articulate that standard here, as Plainti ffs have not raised any challenge to the Delay Rule under that provision of the APA.
III. Analysis Plaintiffs allege that the Del ay Rule is invalid, as the agencypromulgated it without adhering to the APA’s notice- and-comment playbook. See 5 U.S.C . § 533. Before reaching that dispute, however, the Court must first consider whether any Pla intiffs even have standing to press forward.
A. Standing
Article III of the Cons titution limits the j urisdiction of fede ral courts to actual “Cases” and “Controversies.” U.S. C onst., art. III, § 2. But not justany dispute will do. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 559- 61 (1992). A plaintiff mu st demonstrate that she suffers: 1)8 an injury-in-fact that is 2) caused by the conduct complained o f and 3) “likely” to be “redressed by a favorable decision.” Id. at 560-61 (quotations omitted). In a suit brought by multiple parties, only a single plainti ff must possess standing for a ca se to proceed. See, e.g., Animal Legal Def. Fund, Inc. v. Glickman, 154 F.3d 426, 429 (D.C. Cir. 1998). At oral argument, Plaintiffs submitted that two siblings, Atma and Anand Krishna, present their best bet on that count. See Transcript at 8:3-4. A greeing, the Court begins an d ends its standing analysis there. The Krishnas are two foreign entre preneurs who claim that they would have applied and qualified for parole under the Int ernational Entrepreneur Rule. See PI Mot., Declaration of Atma Krishna, ¶¶ 7, 9. In May 2017, the t wo British nationals found ed LotusPay, a U.S.-based start-up designed to help companies co llect digital payments. Id., ¶¶ 1 -2, 5. Both play integral roles in the business — Atma is the CEO, w hile Anand is the Head of Mark eting — and each owns more than a 10% stake in the com pany. Id., ¶¶ 2, 9. They also alle ge (and the Government does not dispute) that they could demons trate a “potential for rapid gro wth,” as their business has already received $120,000 from qualified U .S. investors and was recogni zed by the renowned start-up incubator Y Combinator. Id., ¶¶ 3-4. The Krishnas contend tha t the Delay Rule has injured them insofar as they have “lo st the opportunity to apply for pa role under the [IE Final] Rule.” Without parole, they say, they w ill be unable “to remain in the United States on a long-term basis.” Id., ¶ 10. Plaintiffs t hen attribute a litany of adv erse consequences to that lost opportunity — namely, that they wil l struggle to hire U.S.-base d employees, obtain additional investment from U.S.-based inve stors, and launch their platform in the United States. Id. For their part, Defendants argue first that “aliens outside th e United States generally lack standing to challenge the Government’s immigration decisions.” Def. Opp. at 14. Their cited cases, however, relate either to j usticiability (rather than st anding) hurdles or decisions on9 individual immigration petiti ons or visas. See Def. Opp. at 14 -17 (citing Harisiades v. Shaughnessy, 342 U.S. 580, 589-590 (1952) (noting that foreign policy is “largely immune” from judicial interference, but nonetheless resolving foreign a lien’s constitutional objections to policy); Bruno v. Albright, 197 F.3d 1153, 1159 (D.C. Cir. 1999 ) (holding denial or revocation of a visa is not subject to judi cial review); Kiyemba v. Obama, 555 F.3d 1022, 1026-28 (D.C. Cir. 2009), vacated, 559 U.S. 131 (2010) (habeas corpus petitio n)). Plaintiffs, by contrast, do not challenge any specific parole determination. Instead, they att ack the Delay Rul e itself, which they allege strips them of a ny meaningful opportunity to pursue parole. See Pl. MSJ at 8-9. There is a difference between a challenge to “DHS’s exercise of discretion” and one to an “overarching agency policy” as ou tside the bounds of its statut ory authority. See R.I.L.-R v. Johnson, 80 F. Supp. 3d 164, 176 (D.D.C. 2015). To the extent Defendants suggest that the result changes when the alien is “ outside the United States,” D ef. Opp at 14, they cite no relevant case law for that proposition. I n any event, one plaintiff — A nand Krishna —resided in this country on a temporary B-1 busines s visa when he filed suit. S ee Krishna Aff., ¶ 6. Defendants relatedly maintain tha t “parole is an immigration ac tion granted at the sole discretion of DHS, and aliens have no legally protected interes t in a discretionary immigration determination.” Opp. at 20. They believe that Plaintiffs’ ina bility to apply for parole thus cannot constitute an injury in fact. Id. at 20-21. Defendants also q uestion whether Plaintiffs can establish redressability, as “ev en with the benefit of the IE F inal Rule, Plaintiffs still need . . . a favorable exercise of DHS discre tion,” as well as a favorable i nspection at a U.S. port of entry, to receive parole. Id. at 18. The Government, however, once agai n fails to engage with Plaint iffs’ actual asserted injury: the lost opportunity to obtain parole status. While P laintiffs concede that they ha ve no10 right to receive parole, they sti ll maintain that being denied the opportunity to seek it constitutes a cognizable injury. The D.C. Cir cuit has indeed held that “a plaintiff suffers a constitutionally cognizable injury by the loss of an opportunity to pursue a ben efit . . . even though the plaintiff may not be able to show that it wa s certain to receive that ben efit had it been accorded the lost opportunity.” CC Distributors , Inc. v. United States, 883 F.2d 146, 150 (D.C. Cir. 1989). In CC Distributors, for example, the C ourt of Appeals considered whet her two private firms had standing to sue the Department of Defense for “the loss of a st atutorily conferred opportunity to compete for a contract.” Id. T he court answered in the affirm ative, even though the firms had “no right” to receive the covete d contracts, which the agencies awarded at their discretion. Id. “[G]iven [their] demonstrated capacity to compete for and to ob tain such contracts in the past,” the court reasoned, an opportuni ty to compete now “would not be illusory.” Id. at 151. The same logic extends to applicants seeking other discretionary be nefits. See, e.g., Regents of the Univ. of Calif. v. Bakke, 438 U.S. 26 5 (1978) (holding student had standing to challenge affirmative-action policies ev en though university would still have had discretion to reject him); West Virginia Ass’n of Cmty. Hea lth Ctrs., Inc. v. Heckler, 734 F.2d 1570 (D.C. Cir. 1984) (finding standing where plaintiffs alleged injury from lost “op portunity to compete” for funding from state, even though state “woul d have complete discretion” to award funding to another party). Although the D.C. Circuit has not co nsidered whether a “lost op portunity” qualifies as a cognizable injury in th e immigration contex t, other courts of a ppeals have unanimously concluded that it does. Take, f or instance, a plaintiff’s stan ding to challenge the denial of an immigration petition. “[A]pproval of a visa petition vest s no rights in the beneficiary” of that petition, see In re Ho, 19 I . & N. Dec. 582, 589 (BIA 1988); De Figueroa v. INS, 501 F.2d 191,11 192-93 (7th Cir. 1974), and the petitioner’s ultimate relief , a green card, depends on the who lly discretionary approval of the State Department. The Sixth Circ uit has nevertheless held that the applicant “los[es] a significan t opportunity to receive an immi grant visa” when USCIS denies an immigration petition. Patel v. USCIS, 732 F.3d 633, 638 (6th C ir. 2013) (quoting Abboud v. INS, 140 F.3d 843, 847 (9th Cir. 1998)). “That lost opportunit y is itself a concrete injury, and a favorable decision would redress it.” Id. The Second, Third, Seventh, Ninth, and Eleventh Circuits have all held the same. See Mantena v. Johnson, 809 F .3d 721, 731 (2d Cir. 2015); Shalom Pentecostal Church v. Ac ting Sec’y U.S. Dep’t of Homelan d Sec., 783 F.3d 156 (3d Cir. 2015); Musunuru v. Lynch, 831 F.3d 880 (7th Cir. 2016); Abboud, 140 F.3d at 847; Kurapati v. USCIS, 775 F.3d 1255, 1260 (11th Cir. 2014). In those cases, as here, there w as no guarantee that the petiti oners would successfully obtain admission into the countr y. Although USCIS has the auth ority to approve immigration petitions, the State Department retains the final authority to issue visas, and it does so with total — and unreviewable — discretion. See Bruno, 198 F.3d at 1159. But as courts could only “prognosticat[e]” about what th e State Department might do, it made sense to assess the likelihood of “relief at a given s tep, rather than the likeliho od of achieving the ultimate goal.” Shalom, 783 F.3d at 162-63. At step one, ordering USCIS to ap prove the petition would give the plaintiff a “significant oppor tunity to receive an immigrat ion visa.” Patel, 732 F.3d at 638. In this case, too, DHS may ultima tely deny parole, which this C ourt could not review, and it can only “prognosticat[e ]” about how the agency would tr eat the Krishnas’ applications.
See Shalom, 783 F.3d at 162-63. As it now stands, however, they c laim that they have lost eve n the opportunity to obtain that im migration benefit. Given that they meet the criteria outlined in the Final Rule, such an opportunity would be far from “illusory .” Cf. CC Distributors, 883 F.2d12 at 151. Rather, with the IE Final Rule in place, the Krishnas would have a “significant opportunity” to move forward wit h their application. See Patel , 732 F.3d at 638. The Court, consequently, agrees that the loss of that opportunity suffices to establish a cognizable injury. Plaintiffs are not home yet, howev er, as there are two wrinkles still to be ironed out. First, the Government has not permanently deprived them of the opportunity to see k parole — at least not so far. As its name im plies, the Delay Rule only del ays their ability to seek parole. By contrast, when USCIS denies an immigration petition, it derails the application permanently. Even so, the difference gives the Court little pause in this ca se. The D.C. Circuit has suggested that an “order delaying the rul e’s effective date . . . [is] ta ntamount to amending or revoking a rule.” Clear Air Council v. P ruitt, 862 F.3d 1, 6 (D.C. Cir. 2 017). That is especially so here, as DHS states it is “highly like ly” to revoke the Rule. See 82 Fed. Reg. at 31,888. By using this Delay Rule to bridge the gap t o rescission, the agency has effe ctively erased — rather than delayed — the benefit of the IE Final Rule. Second, even were rescission to occu r, Plaintiffs might still t echnically have an opportunity to apply for parole . As outlined above, the agency has long held the authority to issue parole “for urgent human itarian reasons or significant pu blic benefit.” 8 U.S.C. § 1182(d)(5)(A). It retains that a uthority today. The IE Final Rule simply provides guidance as to how DHS should assess whether a foreign entrepreneur satisfi es the “significant public interest” prong of the parole t est. Even without that Rule, a ny given agent could theoretically exercise her discre tion to find in Plaintiffs’ favor on the sam e count. That said, the part ies agree that, in practice, the Delay Rule would leave parole a lost cause for entrepreneurs. The G overnment has maintained in its briefing that the IE Final Rule represented a “tect onic shift” for foreign entrepreneurs. See Def. Opp. to PI at 25. Indeed, that13 was the point of the Rule. S ee 82 Fed. Reg. at 5,238. During oral argument, moreover, when Plaintiffs argued that parole w ould be “virtually impossible” w ithout the Rule, see ECF No. 27 (Oral Arg. Tr.) at 6:20, the Gove rnment did not dispute the ass ertion. Indeed, it doubled down, agreeing that “parole histori cally has not been . . . us[ed] in this matter.” Id. at 12:13-16. This Court, too, is aware of no case in w hich a foreign entrepreneur has received parole. It therefore agrees that the Delay Rule depr ives Plaintiffs of a “significan t opportunity” to pursue parole, see Patel, 732 F.3d at 638, and that lo ss of a meaningful opportuni ty constitutes a c ognizable injury. With Plaintiffs’ injury properly framed as the “lost opportuni ty” to seek parole, the redressability inquiry becomes far less thorny. Plaintiffs ask the Court to invalidate the Delay Rule; were it to do so, the Govern ment agrees that the IE Final Rule would immediately take effect, thereby restoring the Kr ishnas’ shot at parole. See De f. Opp. at 34. During oral argument, the Government suggested that even with the IE Final Rule in place, it might still fail to complete any parole request s before rescission. See Tr. 15: 6-23; 16:3-10. The Court, however, sees no evidence that the agency would simply run out the clock on applications. Rather, the entire premise of the Delay Rule is that DHS would otherwise implement the IE Final Rule (and expend significant re sources doing so). With no indi cation of bad faith on the Government’s part, the Court assumes it would process applicati ons in regular order. Were it to do so, Plaintiffs would have a far more meaningful chance at pa role than they would have with the Delay Rule in place. That suffices to establish standing.
B. Notice and Comment Having cleared the jurisdictiona l brush, the Court now turns to the merits. Under the APA, an agency must provide “[g ]eneral notice of proposed rule making” in the Federal Register, as well as “an opportuni ty to participate in the rule making through submission of14 written data, views, or arguments ,” before promulgating a rule. See 5 U.S.C. § 553. These requirements apply with no less fo rce when the agency seeks to delay or repeal a v alid final rule. As the D.C. Circuit recently r eiterated, “‘[A]n agency issuing a legislative rule is itself bound by the rule until that ru le is amended or revoked.’” Clean Air Co uncil v. Pruitt, 862 F.3d 1, 9 (D.C. Cir. 2017) (quoting Nat’l Famil y Planning & Reprod. Health Ass’ n, Inc. v. Sullivan, 979 F.2d 227, 234 (D.C. Cir. 1992)) (altera tions omitted). It “may not alter such a rule without notice and comment,” nor does it have any i nherent power to stay a final r ule. Id. (internal quotation marks and alterations omitted). Defendants, as a result, do not disp ute that the Delay Rule con stitutes a final rule, subject to the APA’s notice-and-commen t requirements. Nor do they clai m compliance with that provision. Rather, they seek ahaven in the APA’s “good cause” exception, which allows an agency to dispense with notice and comment when it “for good ca use finds . . . that notice and public procedure thereon are im practicable, unnecessary, or con trary to the public interest.” 5 U.S.C. § 553(b)(B). The Court reviews an agency’s finding of good cause de novo , Sorenson v. FCC, 755 F.3d 702, 706 (D.C. Cir. 2014), and, in doing so, must“examine closely” the agency’s explanation as outlined in the rule. See Council of S. Mountai ns, Inc. v. Donovan, 653 F.2d 573, 580 (D.C. Cir. 1981). Because notice and comment is the defaul t, “the onus is on the [agency] to establish that notice and co mment” should not be given. Actionon Smoking & Health v. Civil Aeronautics Bd., 713 F.2d 795, 801 n.6 (D.C. Cir. 1983). Any agency faces an uphill battle to meet that burden. The D.C . Circuit has repeatedly warned that “the good cause excep tion ‘is to be narrowly constr ued and only reluctantly countenanced.’” Mack Trucks, Inc. v. EPA, 682 F.3d 87, 93 (D.C . Cir. 2012) (quoting Util. Solid Waste Activities Grp. v. EPA, 236 F.3d 749, 754 (D.C. Cir . 2001)). The APA “excuses15 notice and comment in emergenc y situations, or where delay coul d result in seri ous harm.” Jifry v. FAA, 370 F.3d 1174, 1179 (D.C. Cir. 2004) (citations omitted ). When, as here, the agency argues that its actions are in the “public interest,” the Court will agree only “in the rare circumstance when ordinary proc edures — generally presumed to s erve the public interest — would in fact harm that interest.” Mack Trucks, Inc., 682 F.3d at 95.
1. Delay Before the Court even reaches t he Government’s justifications, Plaintiffs argue that the agency has forfeited any “good cause” defense through its own d elay. In other words, Defendants purportedly promulgate d the Delay Rule in response t o an Executive Order issued on January 25, 2017. See 82 Fed. Reg. at 31,887. But they waited until July 11, 2017, to do so — a mere six days before the IE Fina l Rule was set to take effect. Because Defendants could have initiated the notice-and-commen t process during that six-month span, Plaintiffs contend that they may not now rely on “good cause.” That position finds significant traction. It is w ell establish ed that good cause “cannot arise as a result of the agenc y’s own delay.” Washington All. of Tech. Workers v. U.S. Dep’t of Homeland Sec., 202 F. Supp. 3d 20, 26 (D.D.C. 2016), aff’d, 857 F.3d 907 (D.C. Cir. 2017). “Otherwise, an agency unwilling to provide notice or an opportu nity to comment could simply wait until the eve of a statutor y, judicial, or administrative deadline, then raise up the ‘good cause’ banner and promulgate rul es without following APA proced ures.” Council of S. Mountains, 653 F.2d at 581. The D.C. Circuit’s decision in Environmental Defense Fund, Inc. v. EPA, 716 F.2d 915 (D.C. Cir. 1983), is instructive . There, the EPA “invoke[d] th e good cause exception [because of] an alleged pressing need to avo id industry compliance with regulations that were to be16 eliminated.” Id. at 920. Yet, the agency suspended the requir ements just one week before the reporting deadline, even though the “EPA had expressed its inte ntion to suspend or eliminate the requirement” eight months ear lier. Id. at 920-21. The D.C. Ci rcuit found the delay fatal to its invocation of good cause: “EPA ha [d] failed to demonstrate that outside time pressures forced the agency to dispense with APA n otice and comment procedures,” since any urgency was the result of the “agency’s own de lay.” Id. at 921. “Therefore, it was not at all reasonable for EPA to rely on the good cause exception.” Id. The D.C. Circuit (and district co urts within this circuit) have repeatedly rejected good cause when the agency delays implementing its decision. See, e .g., Air Transp. Ass’n of Am. v. Dep’t of Transp

. , 900 F.2d 369, 379 (D.C. Cir. 1990) (finding agency foreclosed from relying on good-cause exception after waiting nine months to implement its authority, apparently to focus on other priorities), vacate d as moot, 933 F.2d 1043 (D.C. Cir. 1991); Nat’l Ass’n of Farmworkers Orgs. v. Marshall, 628 F.2d 604, 622 (D.C. Cir. 198 0) (rejecting agency’s goodcause finding where it waited se ven months between its initial rule and update to that rule because “the time pressure .

. . was due in large part to the S ecretary’s own delays”); World Duty Free Americas, Inc. v. Summers, 94 F. Supp. 2d 61, 65 (D.D.C. 2 000) (agency’s “considerable delay [of two years] in promulga ting the Rules substantially un dercuts defendants’ present position”). To date, Defendants’ justificati on for their delay remains vagu e. The Government’s briefing never explains the time lag, and, when pressed at oral argument, it struggled to explain what the agency did between learni ng of the Executive Order and issuing the Delay Rule. At most, the agency suggested that it needed time to consider “the applicability of the executive order” in the “context of a l eadership change.” Tr. 37:18-20. Apparently, DHS needed until July17 to decide whether it was “highl y likely” to rescind the IE Fina l Rule, and only then did it see the Delay Rule as necessary. While the agency may well be decrying an emergency of its own creation, the Court need not resol ve whether it has forfeited a ny good-cause defense. Even on its own terms, the agency’s pro ffered reasons for bypassing notice and comment easily fall short of good cause. The Court now explains why.
2. Good-Cause Rationales In a total of three paragraphs i n the Federal Register, DHS off ered its rationales for invoking the good-cause exception. Fi rst and foremost, the age ncy explained that if it did not “delay the effective date immed iately, USCIS would be required to expend limited agency resources to implement the IE Final Rule.” 82 Fed. Reg. at 31, 888. Second, it averred that implementing the Rule would “sow confusion” among stakeholders and potentially trigger unwarranted reliance interest s. Id. The Court finds neither s tatement persuasive.

a. Expense DHS primarily justified the Dela y Rule by citing the expense of implementing the new parole system. It worried that doing so “would require USCIS t o establish a new business line for the processing of entrepreneu r parole applications, hir[e] and train[] additional adjudicators, modify[] intake and case manage ment information technology syst ems, modify[] application and fee intake contracts, develop[] guidance for the adjudicators, and communicat[e] with the public.” 82 Fed. Reg. at 31,888. At th e same time, it announc ed that the Department was “highly likely” to rescind the Final Rule, “and may ultimately eliminate the program, [such that] the expenditure of these resour ces is unlikely to ever be recou ped from filing fees under the new18 program.” Id. In other words, t he agency hesitated to pile re sources into a parole program that would not be long for this world. This explanation does not pass mu ster. As an initial matter, t he agency’s concern for its (or its components’) own bottom line hardly constitutes the sor t of emergency necessary to invoke good cause. As the D.C. Circuit recently explained, “In the past, [it has] approved an agency’s decision to bypass noti ce and comment where delay woul d imminently threaten life or physical property.” Soren son, 755 F.3d at 706; see, e.g., Jifry, 370 F.3d at 1179 (upholding assertion of good cause when rule was “necessary to prevent a p ossible imminent hazard to aircraft, persons, and property wit hin the United States” after terrorist attacks on September 11, 2001); Council of the S. Mount ains, 653 F.2d at 581 (noting cas e was one of “life-saving importance” involving miners in m ine explosion). It is true th at the Court of Appeals has reserved the “possibility that a fiscal calamity could conceivably justify bypassing the noticeand-comment requirement.” Sorenson, 755 F.3d at 707. Yet, tha t fiscal injury was to third parties, not the government . Id. at 705-07 (finding no good ca use even though agency’s fund, paid out to telecommunication provi ders, might suffer shortfall absent immediate rule). Defendants cite no case in whi ch a court has found good cause s imply because it would save the
agency resources. Even assuming that “fiscal per il” for an agency could constitut e good cause, DHS has failed to provide “factual findi ngs supporting th e reality of t hat threat.” Id. at 706. In fact, DHS previously stated th at it did not anticipat e “that the rule wil l generate additional processing costs to the government to process a pplications.” 82 Fed. Reg. at 5, 274. That is because “[t]he INA provides for the collection of fees at a level that will ensure recovery of the full costs of providing services, including admin istrative costs and services provided without charge to19 certain applicants and petit ioners.” Id. at 5,282. Specifical ly, the agency estimated it would process roughly 2,900 applications this year and receive $1,285 each in filing fees, generating more than $3.5 million. Id. at 5,283. Spouses and dependents must also pay filing fees totaling about $765 each, and any spouse seeking work authorization woul d kick in another $410. Id. at 5,273-74. At the time, DHS believed those fees sufficient to c over “processing costs to the government.” Id. at 5,274. The Government offers nothing to u ndercut that estimate, such as by providing competing figures abouthow much implementing the Rul e would actually cost. Nor does it explain why ultimate rescission of the Rule would someh ow imperil these collections during the Rule’s vita lity. Defendants instead rely largely ontheir “assessment of their own limited resources,” Opp. at 31, but an “agency cannot claim goo d cause without offering any evidence, beyond its asserted exp ertise.” Tennessee Gas Pipeli ne Co., 969 F.2d at 1145-46 (rejecting good cause when agenc y provided “little factual basi s” for its views). Without more, the Government has not shown a “fi scal calamity” in the making. See Sorenson, 755 F.3d at
705-07. At times, Defendants also suggest that the Rule was an “extraor dinary change” to the parole system and would thus involv e “training adjudicators abo ut a novel and extraordinarily complex exercise of parole a uthority.” Opp. at 29-30. This lo gic suffers from several flaws. First, the IE Final Rule w ould not “up-end . . . over a century ” of discretionary decisionmaking, as Defendants protest. Id. a t 32. Rather, it expressly preserves the agency’s discretion on a caseby-case basis, while providing “guidance” on how officers might exercise that discretion in a uniquely “complex” area of pa role. See 82 Fed. Reg. at 5,238. While the Rule may have changed the game for entrepreneurs, it was a far less significa nt shift for the agency. DHS expects it might receive and pro cess 2,940 applications related to the Rule — hardly a change of20 “tectonic” proportions. Id. a t 5,273. Second, the agency wentthrough the proper channels to consider and mitigate the impact of its updated parole process. It solicited a nd received more than 700 comments, id. at 5,244, and deemed a six-month time la g sufficient to implement the new system. Id. at 5,242. Given t hat considered process, ther e is no indication that implementing the Rule would be unduly taxing on the agency. Finally, although Defendants main tain that rescission of the IE Final Rule is imminent — such that any expenditures to imp lement it would be wasteful — the Court has seen no effort to that effect thus far. Almost five months have already passed s ince issuance of the Delay Rule, and the agency has still not promulgated any notice of proposed rulemaking, much less a final version. As DHS waits to issue a new rule, its arguments in fa vor of delay leak water. The agency purportedly seeks to avoi d frittering away resources on a temporary rule but, at least for now, the IE Final Rule seems to have a solid hull. b. Confusion and Reliance Perhaps recognizing the weakness of its primary justification, Defendants assure the Court that the Delay Rule was not “simply a matter of off-setti ng costs or training” additional agency employees. See Def. O pp. at 32. Instead, the agency in sists that implementing the IE Final Rule “would sow confusi on and would likely cause the wast e of resources by multiple stakeholders with interests i n [the] rulemaking.” 82 Fed. Reg. at 31,888. But a “desire to provide immediate guidance, without more, does not suffice for good cause.” United States v. Cotton, 760 F. Supp. 2d 116, 128 (D.D.C. 2011) (quoting United States v. Cain, 583 F.3d 408, 421 (3d Cir. 2009)). To hold otherw ise “would swallow the rule ,” as an agency could always argue that any given regulation pr ovides clarification or guida nce. See United States v. Valverde, 628 F.3d 1159, 1166 (quoting Z hang v. Slattery, 55 F. 3d 732, 746 (2d Cir. 1995)); see21 also Nat’l Ass’n of Farmworke rs Orgs. v. Marshall, 628 F.2d 604 , 621 (D.C. Cir. 1980) (“[G]ood cause to suspend notice and comme nt must be supported by more t han a bare need to have regulations.”). Defendants nonetheless pitch the Rule as an “extraordinary chan ge,” which would “add regulatory complexity” to the parole system. See Opp. at 29. As explained above, that protestation oversta tes the novel nature of the Rule. In any e vent, Defendants fail to show any real “confusion” that requ ired bypassing notice and comment. Most concretely, the agency worries that if the IE Final Rule were left in place, foreign e ntrepreneurs might misguidedly rely on it, including by “expending signi ficant effort and resources in order to establish eligibility under the criteria promulgated by t he IE Final Rule.” See 82 F ed. Reg. at 31,888. They could then be caught betwixt and betwee n if rescission subsequently o ccurred. Similarly, it fears that companies might unwittingly invest in a start-up, only to learn later that its owners had no shot at parole. Those claims ring hollo w, however, when a notice of pr oposed rulemaking would, by definition, alert the public tha t the agency was considering de laying or rescinding the Rule. Had the agency issued such a notice, entrepreneurs could have made a reasoned decision as to whether to expend effort and resources. The same is true for a ny companies considering investments. Plaintiffs aver th at they, at least, would choose to apply under the IE Final Rule, even understanding any chance at p arole might be short-lived. See Krishna Aff., ¶ 11. Start-ups grow rapidly, so Plaintiffs believe that even a short stint in the United States could aid their business; they also hope that the Government might grandfather in applications or reevaluate its stance once it sees t he program in operation. See Pl. MSJ at 2 6-27. The agency, moreover, gave litt le thought to those foreign entr epreneurs who may have already relied on the impending IE Final Rule, set to take effe ct just six days before the agency22 suspended it. Without notice to the contrary, aliens would hav e fairly expected the Rule to take place as scheduled and therefore already “expend[ed] significan t effort and resources in order to establish eligibility.” The Del ay Rule prejudices any reliance interest they had in the IE Final Rule. In the Federal Register, the Gove rnment cited two cases to supp ort its argument that regulatory “confusion” arising fro m the IE Final Rule constitut ed good cause: Am. Hosp. Ass’n v. Bowen, 834 F.2d 1037, 1045 (D.C. Cir. 1987), and Mid-Tex Ele c. Coop. v. FERC, 822 F.2d 1123, 1133-34 (D.C. Cir. 1987). Neither provides guidance here . Bowen involved exceptions “for interpretive rules, proce dural rules, or general statement s of policy,” which are not subject to the same APA requirements as final rules. See 834 F.2d at 1044 -45. Here, by contrast, Defendants concede that the Dela y Rule is subject to the APA’s strictures. In Mid-Tex, the D.C. Circuit considered whether FE RC could adopt an interim rule aft er the court struck down its first attempt. Id. at 1124-25. Although t he panel recognized the qu estion was “substantial and troublesome,” it allowed FERC to fill the void rather than leav e the agency without any rule or guidance in place. Id. at 1132. T here is no such risk in thi s case. But for the Delay Rule, the IE Final Rule would take effect a nd provide guidance for any entre preneurs considering a parole application.
* * * All told, “[a]gencies obviousl y have broad discretion to recons ider a regulation at any time,” and the Department may well ultimately decide to rescind the International Entrepreneur Rule. See Clean Air Counc il, 862 F.3d at 8. To do so, however , it “must comply with the Administrative Procedure Act (A PA), including its requirements for notice and comment.” Id. In this case, each of the agenc y’s explanations might be good r eason to promulgate the Delay23 Rule, but none justifies finaliz ing it without notice and comme nt. The Rule is therefore procedurally defective.
C. Remedy That leaves the question of rem edy. When a court concludes tha t agency action is unlawful, “the practice of the court is ordinarily to vacate th e rule.” Ill.Pub. T elecomms. Ass’n v. FCC, 123 F.3d 693, 693 (D.C. Cir . 1997); Reed v. Salazar, 74 4 F. Supp. 2d 98, 119 (D.D.C. 2010) (“[T]he default remedy is to s et aside Defendants’ action .”); Sierra Club v. Van Antwerp, 719 F. Supp. 2d 77, 78 (D.D.C. 2010) (“[B]o th the Supreme Court and the D.C. Circuit Court have held that remand, along with va catur, is the presumptively appropriate remedy for a violation of the APA.”). “[A] lthough vacatur is the normal rem edy, [courts] sometimes decline to vacate an agency’s action.” Allina Health Servs. v. Sebeliu s, 746 F.3d 1102, 1110 (D.C. Cir. 2014). That decision depends on the “ seriousness of the order’ s deficiencies (and thus the extent of doubt whether the agency chose correctly) and the disruptive consequences of an interim change.” Allied-Signal, Inc. v. U .S. Nuclear Regulatory Comm’n , 988 F.2d 146, 150-51 (D.C. Cir. 1993); see also Standing Roc k Sioux Tribe v. U.S. Army Cor ps of Engineers, 2017 WL 4564714, at *8 (D.D.C. Oct. 11, 2017) (de clining to vacate whenagency “largely complied” with statute and could likely substant iate prior conclusions on rema nd). Neither factor favors the Govern ment here. The D.C. Circuit re cently made clear that “deficient notice is a ‘fundament al flaw’ that almost always re quires a vacatur.” Allina Health, 746 F.3d at 1110 (quoting Heartland R eg’l Med. Ctr. v. Sebelius , 566 F.3d 193, 199 (D.C. Cir. 2009)). It comes as no surprise, t hen, that “[w]hen notice-and -comment is absent, the Circuit has regularly opted for vacatur.” I n re Long-Distance Tel. Serv. F ed. Excise Tax Refund Litig., 853 F. Supp. 2d 138, 144 (D.D.C. 2012); see also CropLife America v . EPA, 329 F.3d 876, 87924 (D.C. Cir. 2003) (vacating regula tion issued without notice and comment); Mendoza v. Perez, 72 F. Supp. 3d 168, 175 (D.D.C. 2014) (vacating rule when agency f ailed to “engage in notice and comment,” as error was “a fundame ntal procedural” one); AFL-CIO v. Chao, 496 F. Supp. 2d 76, 91 (D.D.C. 2007) (noting that “f ailure to comply with the A PA’s notice-and-comment requirements is unquestionably a‘serious’ deficiency”). Nor would vacatur be particularly disruptive. This is not a ca se in which “the egg has been scrambled and there is no apparent way to restore the status quo ante.” Sugar Cane Growers Co-op of Fla. v. Veneman, 289 F.3d 89, 97 (D.C. Cir. 20 02). Rather, vacating the Delay Rule would simply allow the IE Final Rule to take effect, as the agency originally intended. When the Department fi rst issued that Rule in January, it anticipated needing six months’ lag time to implement it. Now, nearly ten months have elapsed. Defendants do not question whether vacatur would be appropriate ; instead, they suggest that the Court should stay any s uch order. In so arguing, DHS largely reprises its reasons for dispensing with notice-and-comm ent in the first place. To wit, they claim that a stay is necessary to save expenses and avoid relia nce interests as the agency fas hions a new Rule. As explained above, none of those consequences justified dispensing with not ice-and-comment, and none justifies a stay. See Hudson v. A m. Fed. of Gov’t Employees, 2 017 WL 5564119, at *2-3 (D.D.C. Nov. 15, 2017) (noting distric t court has discretion to balance equities i n staying relief). To so order would simply remedy the agency’s delay with more de lay. Defendants also invite this Court to commission additi onal briefing as to remedy. Both parties, however, have had a full opportunity to address the subject and have done so in det ail. If Defendants have additional reasons why a stay might be approp riate pending any appeal, the y can so move. Until then, the Court believes that vacatur is the appropriate remedy.25 IV. Conclusion For the foregoing reasons, the Court will grant Plaintiffs’ Mot ion for Summary Judgment and deny Defendants’. It will also vacate the Delay Rule. A c ontemporaneous Order to that effect will issue this day.
/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: December 1, 2017