I don’t know if you noticed recently, but has DHS/DOS/DOL been “changing” the law without actually changing the law? While this practice has been going on for a while (and some would argue that the decades of “liaison minutes” were rule-making by meeting), recently it has has gotten out of hand. The informal, practice changing process really began to effect the practice of immigration law when the DOL started issuing it “FAQs” as part of the then new PERM process. I will give it to the DOL–they have managed to turn the prior complicated labor certification process into a minefield of potential denials if you miss one their FAQ answers.
In the last couple of years DHS, particularly CIS and ICE have begun to change the rules we have been living by, sometime for decades, by RFE, and recently by a press release. This last week USCIS issued what amounted to a press release, reversing almost 20 years of practice as it pertains to O and P visa holders. They did this with no notice, no discussion, and without regard to the negative impact this reversal in processing policy will have on visiting artists and cultural exchange visitors. Did they even ask their own lawyers whether this change in practice was legally permissible?
My question is this: Who’s idea was it to sidestep the Administrative Procedures Act? The answer is simple–It does not matter WHO decided to allow it, because now we mut simply to a stop to this practice. Is it time for us to start suing USCIS, DOL and the DOS on changes in procedures that negatively effect our clients, when that negative change has not undergone the necessary regulatory review of the APA. We also cannot rely on some national organization to fund or run this type of litigation; the breadth and scope of the challenges would be too daunting for one organization. I believe that a lot of these cases can and should be handled at your local Federal Court by those of us with a passion for a particular issue.
As Immigration Lawyers we provided the necessary motivation for USCIS to cease needless naturalization and adjustment adjudication delays by filing mandamus actions for our clients around the United States. I believe that now is the time for us to start challenging these APA and other violations in Federal Court. One of our heroic colleagues, Brent Renison has conducted a virtual one-man campaign against the widow penalty, and he won! Brent is a hero to me, because has shown the way. Find your issue, get your plaintiff, do the work pro bono, and help make the immigration system work for its users and beneficiaries, not just for the government.