I've railed repeatedly in this blog about the abhorrent tendency of federal immigration agencies to make sweeping changes in law and procedure merely by issuing easily-repudiated press releases and policy memoranda. A recent policy memorandum issued by U.S. Citizenship and Immigration Services (USCIS) illustrates just how much damage can ensue when bureaucrats pass rules without the beneficial vetting required by statute and presidential orders.
The Administrative Procedure Act mandates that the public be given notice of proposed rulemaking and an opportunity to comment. Presidential Executive Order 12291 requires formal agency rulemaking in order "to reduce the burdens of existing and future regulations, increase agency accountability for regulatory actions, provide for presidential oversight of the regulatory process, minimize duplication and conflict of regulations, and insure well-reasoned regulations." EO 12291 also defines "[r]egulation" or "rule" to mean "an agency statement of general applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the procedure or practice requirements of an agency."
Exhibit A in opposition to rulemaking by unexamined bureaucratic missive is an August 6, 2009 Policy Memorandum by Donald Neufeld, Acting Associate Director, Operations for USCIS. Mr. Neufeld's memorandum carries an unassuming, if soporific, title: "Successor-in-Interest Determinations in Adjudication of Form I-140 Petitions." Its purpose is benign and commendable -- to modernize the interpretation of continuing green-card eligibility for employees of businesses involved in corporate reorganizations so that surviving entities need not re-start the years-long immigrant visa process from scratch. Yet by failing to give the public and the stakeholder community an opportunity to enlighten the agency on the legal and real-world implications of its contemplated change, USCIS creates mischief and mishigas for itself and for the highest of high-achievers in the immigration pantheon.
By way of explanation, the high achievers to which I refer are outstanding researchers and professors and executives and managers of multinational businesses. These two "Priority Worker" green-card categories are considered by Congress as so important to the nation that the usual protections of the U.S. labor force, the labor market test for worker availability known as PERM labor certification, do not apply to them.
So how does Mr. Neufeld's memorandum hurt these high achievers? It says that unlike the employers of foreign citizens who have been granted labor certifications, the employers of high achievers (colleges, universities and large and small companies with American and foreign operations) are not allowed to benefit from the successorship-in-interest principle. This means that they must go back to the end of the quota queue and apply all over again. The result: The high achievers will likely be required to wait several years longer to get their permanent resident status, and some may be disqualified by virtue of the passage of time and the changed circumstances involved in the employing organization's restructuring.
The Neufeld memorandum is not only arbitrary and unfair in granting special benefits when "stuff happens" to one group and denying them to similarly situated others. The memorandum flies in the face of 25 years of settled agency practice which (numerous immigration-lawyer colleagues can attest), has allowed successorship-in-interest to benefit these high-achieving denizens of academia and Wall Street. Be assured, however, that the talented Masters of the Universe and the Professors Kingsfield seeking permanent residence in this country (and their American employers and lawyers) will not go quietly into the night of quota hell.
The USCIS must stop embarrassing itself by perpetuating this seemingly expedient but ultimately foolish and illegal behavior. It must create rules the old fashioned way that Congress and the President require, and let the public be heard.