Notice & Comment

Immigration Law and a Second Look at the Practically Binding Effect, by Jill E. Family

Immigration law can serve as a useful lens to examine broad administrative law principles because the nature of regulation in immigration law is distinctive.  The regulated party is an individual noncitizen.  The regulation includes restrictions on fundamental life decisions such as where one will live and work.   While it is true that no two agencies are exactly alike and that the Administrative Procedure Act is meant to tolerate differences among agencies, the distance between immigration law and the mainstream allows immigration law to provide an interesting view to re-examine commonly held notions about administrative law.

For example, I have suggested that immigration law’s experience with guidance documents lends support to the idea that there is no one blanket solution to the guidance document problem.  An agency by agency approach has greater appeal than a centralized directive that requires all agencies to attempt to fix their guidance document dilemmas in exactly the same way.  One of the many contributions of Professor Parrillo’s ACUS study is that he encountered empirical support and additional reasons why an agency by agency approach is better.

Looking at the practically binding effect piece of the guidance document dilemma through the lens of immigration law also reveals lessons for administrative law generally.  First, we should not assume that all regulated parties are sophisticated entities that are deeply engaged with guidance documents.  In immigration law the practically binding effect cannot be presumed since many applicants for immigration benefits are not represented. For example, in Fiscal Year 2011 only 27% of green card applications based on a family relationship were filed by individuals with representation.  Second, agency flexibility has its drawbacks.  In immigration law there are many examples of agency behavior where the agency does act flexibly.  The agency does not seem bound to a guidance document rule and, borrowing Professor Parrillo’s term, there is no “practical protection.”  This could be because agency heads change their minds or because front line adjudicators are not following the rule in a guidance document.  Immigration attorneys complain about this shifting ground problem.

This post focuses on applications for immigration benefits rather than removal (deportation) adjudication.  Applicants who wish to live and work in the United States must receive permission to do so from United States Citizenship and Immigration Services (USCIS), a component of the Department of Homeland Security.  While Congress has set categories of lawful admission and at times accompanying quotas for those categories, USCIS is left to adjudicate petitions for lawful status.  It frequently applies its own guidance documents in the process.  In fact, guidance documents often are the only source of rules governing key issues in immigration benefits law.

Unrepresented noncitizens may not even know that guidance documents exist, let alone their meaning.  To them, guidance is invisible and therefore has no practically binding effect. A US Citizen who applies for a green card for a spouse without the aid of an attorney probably does not even know to look for guidance documents.  Even if that individual found his or her way to USCIS’ website, that individual would not find an easy path to discovering guidance documents.  For years, USCIS has been developing a Policy Manual to corral all of its guidance, but it is not complete.  This particular individual would be interested in the “Immigrants” section of the Policy Manual.  “Part B- Family-Based Immigrants” appears in grey and is not clickable.  Apparently that part of the Policy Manual is not complete (or a layperson might think there are no applicable guidance documents).  Another section of the website, however, addresses policies that have not been integrated into the Policy Manual. But individuals are mostly left on their own to know that guidance documents exist, let alone where to find them or their significance.

Immigration lawyers know about guidance documents, but they also know that adjudicators do not always follow the rules announced in guidance documents.  In fact, immigration attorneys at times express frustration when an agency does not follow the rule in a guidance document, even though guidance rules are not legally binding on the agency.  This frustration stems from immigration law’s reliance on guidance-based rules.  If the only rule is one that need not be followed and there is no “practical protection,” then it is hard to predict the results of an adjudication.

Immigration lawyers also know that guidance can change quickly with little to no notice.  Because immigration law relies on guidance-based rules, this means that the rule that exists when an application is filed may not be the rule that applies by the time the application is adjudicated.   These changes can come in the form of amended written guidance documents that are issued while an application is pending, or through more general changes in the policy mood emanating from the White House.  The changes in mood are even less transparent because it is not always entirely clear how the change in mood will manifest in any given adjudication.

While the shifting ground problem is not new, actions of the Trump administration provide recent examples.  In April 2017, President Trump issued an executive order stating that “it shall be the policy of the executive branch to rigorously enforce and administer the laws governing entry into the United States of workers from abroad.” That mood-informing directive, as well as others requiring “extreme vetting” of immigrants, have led to some changes to guidance rules that have been transparently explained in writing and some changes that have not.

An example of a guidance rule change in writing narrows the availability of H-1B status.  Just before USCIS began accepting petitions for H-1B status for the 2018 fiscal year, it rescinded existing guidance and announced new guidance that narrowed the availability of H-1B status for computer programmers.   As explained by the American Immigration Lawyers Association, the new guidance “caught thousands of employers and hopeful beneficiaries unaware” as they had already prepared their applications.  Another example of a written shift is a change to the Foreign Affairs Manual that gives consular officers more discretion to determine that applicants for admission should be excluded from the United States because they are likely to become a public charge.  This change to the manual occurred while the administration is working on a new notice and comment rule that will govern the public charge determination.

As far as changes not in writing, one example is a recent, unannounced change in the processing of a type of application for a business category of legal status.  An immigration lawyer interviewed for a news report about the sudden change stated, “It would have been nice to have been told there was a policy change.” Another said: “It’s the nature of the current administration.  They don’t tell you why. They don’t tell you when. They don’t tell you the legal reason for it. They just do it.”

Additionally, immigration lawyers have reported an “invisible wall” or  “second wall” against legal immigration built by the Trump administration that is at least partially made up of increased denial rates and a slowdown in the processing of benefits applications.  The American Immigration Lawyers Association reports that the backlog of cases awaiting adjudication before USCIS has increased, even though the total number of applications filed has dropped.  Also, approvals of H-1B petitions dropped 8% from 2017 to 2018.  The percent approved was relatively stable since 2015 (95.7%, 93.9%, 92.6%, and then 84.5%).

Immigration attorneys can be confounded as to what rule may actually apply in an adjudication when guidance rules change without notice, no matter if the change is produced in writing or happens because of a change in mood.  This reminds us of the continued importance of notice and comment rulemaking as a more stable source of rulemaking.  A regulated party may not feel the practically binding effect of a guidance document if an agency has a reputation of not following the rule in a guidance document or if practice is known to quickly change without notice.  Even though we may not be as concerned about a practically binding effect in those circumstances, the use of guidance documents avoids providing the more stable foundation of notice and comment rules.

We also may not need to be concerned about a practically binding effect if unrepresented parties do not know about guidance documents or even if known, do not understand their significance.  The use of guidance documents is still problematic, however, because in that scenario administrative law is operating under a false premise of transparency.

Immigration law reminds us that not all regulated parties are alike, and the effects of guidance documents are not the same across all agencies.  Immigration law also shows us that the flexibility desired in an effort to blunt the practically binding effect can itself be problematic in the absence of notice and comment rules.   Professor Parrillo’s thoughtful principled flexibility approach aims to alleviate the practically binding effect; immigration law reminds us that the practically binding effect may not be every agency’s biggest guidance document challenge.

Jill E. Family is the Commonwealth Professor of Law and Government and Director of the Law and Government Institute at Widener Law Commonwealth.

This post is part of a symposium on federal agency guidance. The rest of the posts in this symposium can be viewed here.

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