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Opinion

Immigration statutes, regulations and memos

IMMIGRATION CORNER - Michael J. Gurfinkel - The Philippine Star

Immigration law can be extremely complex and confusing. There are many parts or components to “immigration law,” including statutes, regulations, memos, etc. In addition, the various Service Centers and local offices may have their own internal policies and procedures on how they will approach cases and apply the law. Why is this important?

Any time a person wants to file a petition, application, motion, appeal, etc., they must follow those statutes, regulations and memos. One seemingly minor mistake, error, oversight, miscommunication or missing document could result in a person’s case being denied, and they could be placed in deportation/removal proceedings.

But what are statutes? Regulations? Memos? And how do they apply to or affect your immigration case and future? Recently, the American Immigration Lawyers Association (AILA) released a flyer discussing the differences among immigration statutes, regulations, memos and DHS social media postings.

Statutes: Under the US Constitution, the US Congress has the authority to govern and regulate immigration. States cannot pass laws affecting US immigration. Statutes are the laws that are passed by Congress and signed by the president, which provide rights and obligations under the Immigration and Nationality Act or INA. They are binding on the governmental agencies, such as DHS and USCIS.

Regulations: Regulations are basically the applicable governmental agency’s interpretation of the statutes that were passed by Congress. The agency sets forth rules on how they will apply the relevant statutes, as well as providing more details on what the statute encompasses and how a person may comply. If the statutes are the “bones,” the regulations provide some of the “meat.”

For example, there was a law called section 245(i), which required, among other things, that a person be physically present in the US on Dec. 21, 2000. But what does it mean to be physically present, and what type of evidence or proof can the person show to establish eligibility? The statute itself was silent on the details, but the regulation spelled out the details.

Regulations are typically published in the Federal Register, giving people an opportunity to comment and, eventually, if implemented, are again published in the Federal Register and put in the Code of Federal Regulations. Regulations then have the force of law, and have to be followed when applying for immigration benefits.

Policy memos: Policy memos are basically announcements from the applicable governmental agency, such as USCIS, concerning its procedures, and provide additional guidance as to how that agency will apply relevant statutes and regulations. The government cannot make new laws or create new rights or obligations through memos, and memos do not have the force of law.  However, courts do give the agencies wide deference when it comes to interpreting and applying statutes and regulations. They are similar to a policy or procedural manual on how the relevant governmental agency interprets the statutes or regulations, and how a person may comply.

Social media: In addition to statutes, regulations and policy memos, DHS will sometimes announce policies and procedures on their website or via social media. These social media posts do not have the force of law, because the government cannot make new laws or create new rights or obligations, by way of a media posting or a tweet. But social media posts still provide information from DHS on how the government interprets the laws and regulations, and how they will be applied.

As you can see, immigration law is complex and confusing, but must still be followed and complied with. While USCIS must follow and apply the same law, some officers strictly apply the rules, while others may be more flexible, etc. But they must work within the boundaries of the law. If you hope to obtain the immigration benefit you’re applying for, or have your case approved, you must also comply with those statutes, regulations and memos, which are constantly changing.

That is why you should consider consulting with and retaining an attorney to represent you in connection with applying for immigration benefits. As you can see, immigration law has so many facets and components that can change overnight, based on a new memo being issued, a court decision, etc. An attorney is constantly updated on the current state of the law and changes, and can help in convincing DHS of your eligibility, by citing or pointing out the relevant law. While retaining an attorney does not “guarantee” results, I think it greatly increases the chances of success, rather than your trying to learn immigration law or figure out what the current state of the law is.

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WEBSITE: www.gurfinkel.com

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