Practical Immigration Concepts in a Time of Change

August 01, 2017

 

Taxonomy of immigration topics to consider

A structural approach can help in the process of change. Here is a suggested structure to consider.

First, remember that the United States is a country of laws, and actions taken by all three branches of government (executive, legislative, and judicial) must be taken within the context of the U.S. legal system.

Second, remember that generally a change to a rule must be done using the same mechanisms that were used to create the rule. Some of these mechanisms are quite complicated and take considerable time (e.g., Congress passing a law or an agency promulgating a regulation), and other mechanisms can be more streamlined (e.g. executive agency policies). Consider:

Sources of authority

Statutes

  • A statute is a law that has been passed by Congress and signed into law by the President.
  • Statutes are generally compiled in the United States Code (USC).
  • Examples of statutes:
    • The Immigration and Nationality Act (INA), as amended - This is the core immigration statute
    • The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) - Section 641 of this statute is the core statutory authority for the electronic collection of information in SEVIS
     
  • The language of a statute can only be changed through the legislative process, which requires approval by both houses of Congress and a signature by the president.
  • The constitutionality or authority of a statute can be challenged in federal court.

Executive Actions

  • Executive actions, also called presidential actions, are actions that are taken by the President. They are usually made using the following vehicles:
    • Executive Order
    • Presidential Proclamation
    • Presidential Memorandum
     
  • The White House website lists presidential actions at https://www.whitehouse.gov/briefing-room/presidential-actions. There may be a lag time between the date a presidential action is signed, and when it appears on the White House website. The website does not list draft or unsigned actions.
  • What's the nature of and difference between these types of executive actions?
    • The Congressional Research Service (CRS) Report, Executive Orders: Issuance, Modification, and Revocation, April 16, 2014, provides a nice general summary: "Executive orders, presidential memoranda, and proclamations are used extensively by Presidents to achieve policy goals, set uniform standards for managing the executive branch, or outline a policy view intended to influence the behavior of private citizens. The U.S. Constitution does not define these presidential instruments and does not explicitly vest the President with the authority to issue them. Nonetheless, such orders are accepted as an inherent aspect of presidential power. Moreover, if they are based on appropriate authority, they have the force and effect of law." This report also explains some of the history, mechanics, and effect of these types of executive actions.
    • Executive Orders are numbered serially, and must by law be published in the Federal Register. The Federal Register website lists all published Executive Orders by recent Presidents, at https://www.federalregister.gov/executive-orders. The National Archives website has some brief FAQs About Executive Orders.
     

Regulations

Policy and interpretive guidance

  • Programs, benefits, and interpretations created through executive policy or the exercise of discretion are not law, but courts give great weight to an agency's interpretation of the regulations it administers.
  • Agency policy and interpretive guidance is not subject to the notice and comment requirements of the Administrative Procedure Act.
  • These types of authority can be changed through the same mechanisms used to create them, which are far less formal than the processes used to create statutory and regulatory law.
  • Examples of policy and interpretive guidance:
    • The DACA program
    • The Department of State's Foreign Affairs Manual (FAM)
    • The SEVP SEVIS Help Hub
    • The designation of a country for Temporary Protected Status (TPS)
    • Agency FAQs, internal policy memoranda, letters, and web content other than statutes, regulations, or court decisions
     
  • Federal court decisions and precedent decisions of agency appellate bodies can also modify the validity or application of agency policies and interpretive guidance.
 

Third, remember that there is a hierarchy of authority. Each level of authority must conform to the levels above it.

Fourth, understanding the role of the immigration-related agencies can help you sift through who is doing what at the agency level. In general, agencies exercise power delegated to them by Congress (through statutes), to regulate certain activities. Agencies usually do this by issuing regulations and policies, adjudicating matters within the agency's competence, ensuring compliance with statutes and regulations, and enforcing those laws.

The Executive Branch of the U.S. government consists of the President, the Vice President, the Executive Office of the President, and the Cabinet. The Cabinet consists of the heads of the 15 executive agencies. All Cabinet-level agency heads have the title Secretary, except the head of the Justice Department, whose title is Attorney General. The head of each agency is appointed by the President and must be confirmed by the Senate. The incoming administration is in the process of considering, vetting, and naming individuals to head these agencies. The agencies that are most involved in the immigration system include:

DHS - Department of Homeland Security (Secretary)

Elaine Duke. Assumed role of acting Secretary of DHS on July 31, 2017, after former DHS Secretary John F. Kelly was appointed White House Chief of Staff.

DOS - Department of State (Secretary)

Rex Tillerson. Took office February 1, 2017.

DOL - Department of Labor (Secretary)

R. Alexander Acosta. Took office April 27, 2017.

DOJ - Department of Justice (Attorney General)

Jeff Sessions. Took office February 8, 2017.

Here is a brief description of the role these agencies play in the immigration process.

Immigration Agency Roles

DHS

Three bureaus within the Department of Homeland Security (DHS) are charged with administering the majority of in-country immigration laws and policies:

  • USCIS: U.S. Citizenship and Immigration Services (USCIS) is responsible for the adjudication of most immigration benefits applications and petitions.
  • ICE: U.S. Immigration and Customs Enforcement (ICE) is responsible for immigration investigations, detention, removal, intelligence, and SEVIS.
  • CBP: U.S. Customs and Border Protection (CBP) is responsible for immigration inspections at U.S. ports of entry, for the Border Patrol, and for the Customs Service.

DOS

The Homeland Security Act of 2002 granted visa policy authority to the Secretary of DHS, while leaving the management of visa issuance with the Department of State (DOS). A Memorandum of Understanding (MOU) between the Departments of State and Homeland Security describes the respective roles and responsibilities of the Department of State and the Department of Homeland Security in the visa issuance process. Under the MOU, the State Department manages the visa process and questions of U.S. foreign policy, but the Department of Homeland Security establishes and reviews visa policy and ensures that homeland security requirements are adequately addressed in the visa process. This arrangement between DOS and DHS was mandated by section 428 of the Homeland Security Act of 2002. The MOU became effective on September 30, 2003.

The Department of State is headed by the Secretary of State, who serves in the President's cabinet. The immigration functions of the Department of State are shared by two Bureaus:

  • The Bureau of Educational and Cultural Affairs (ECA) manages the J Exchange Visitor Program and contains the Exchange Visitor Program Designation Staff.
  • The Bureau of Consular Affairs (CA) contains the Visa Office, which recommends and administers legislation, regulations, policies, and procedures relating to visa issuance and refusal at U.S. consular offices overseas. The Visa Office's Office of Legislation, Regulations, and Advisory Assistance provides guidance on matters of law and regulation, and houses the Waiver Review Division, which is responsible for administering the provisions of the two-year home country physical presence requirement applicable to some exchange visitors. The Visa Office also contains the National Visa Center, which coordinates the immigrant visa process.

DOL

The Department of Labor (DOL), through the Secretary of Labor, shares responsibility with the Justice and State Departments for regulating the employment of aliens while they are inside the United States, and for protecting the employment of U.S. workers. The immigration-related duties of the Department of Labor are handled by two DOL agencies:

The Employment and Training Administration (ETA) contains the Office of Workforce Security, which supervises the Division of Foreign Labor Certification. The Division of Foreign Labor Certification manages both the Permanent Labor Certification and the Labor Condition Application programs. The ETA's United States Employment Service is linked nationwide to State Department of Labor Offices called State Workforce Agencies (SWAs).

DOJ

The Attorney General (AG), also a Cabinet position, heads the Department of Justice (DOJ). The Executive Office of Immigration Review (EOIR), was created in 1983, as a Department of Justice agency that was separate from INS. The EOIR continues to exist after the creation of DHS, and is still under the Attorney General in the Department of Justice. It consists of three units:

  • The Board of Immigration Appeals (BIA)
  • The Office of the Chief Immigration Judge (OCIJ)
  • The Office of the Chief Administrative Hearing Officer (OCAHO)

Immigration Judges conduct removal hearings, while the BIA is an administrative appeals body directly accountable to the Attorney General. The BIA decides appeals of decisions made by Immigration Judges and of certain decisions by DHS District Directors and Service Centers [BIA appellate jurisdiction is set forth at 8 CFR 3.1(b)], and is the highest administrative body for interpreting immigration laws. It issues several thousand decisions a year, a number of which are designated as precedents, which means they are legally binding on the BIA, immigration judges, and DHS. The Office of the Chief Administrative Hearing Officer (OCAHO) resolves cases concerning employer sanctions, document fraud, and immigration-related employment discrimination.

Finally, here is a "taxonomy" of areas of consideration related to immigration, to help organize thought and dialogue. It is only a suggested taxonomy, not a prescription for or prediction of change.

Taxonomy of Immigration Areas to Consider
  • Admission to the United States
    • The border, including walls and the border patrol
    • Visa screening and pre-entry clearances
    • Discontinuance of visa issuance or admission to the United States, for example, under INA 212(f) or INA 243(d)
  • Removal from the United States
    • Foreign nationals convicted of crimes
    • Undocumented immigrants
    • Visa overstays and other status violations
  • Changes to immigration benefits (from hardest to easiest to change)
    • Benefits that would require statutory change
      • E.g., Repeal of the Affordable Care Act
    • Benefits that would require regulatory change
      • E.g., STEM OPT regulatory language
    • Benefits that would require policy change
      • DACA and other highly discretionary programs
      • More established discretionary temporary programs like TPS
      • Agency policy guidance and interpretations
    • Benefits management
      • Initial benefits
      • Extension of benefits
      • Revocation of benefits
  • Monitoring within the United States
    • SEVIS and SEVIS-like nonimmigrant reporting and tracking
    • Registry of certain populations
    • Changes of address
    • Identification documents
    • Electronic entry and exit systems
    • Overstay monitoring