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Angelo A. Paparelli, Nov. 10, 2019
"President Trump’s October 9, 2019 overtures landed as music to the ears of many grizzled immigration lawyers who persistently suffer battle fatigue from the culture of virtually never. On that day the President released a double album, each with artfully penned liner notes:
The songs of TAFCAEA and IAGD, resonating beautifully, and soothing frazzled heartstrings, make clear that in adjudicating and enforcing federal laws all covered Executive-Branch agencies must:
The media, with few exceptions, have given scant attention to TAFCAEA and IAGD. See, e.g., “New Trump Orders: Guidance Should Be A Shield, Not A Sword,” by Susan E. Dudley, and “Trump Orders Limit Effect of Agency Guidance on Industry,” by a team of Bloomberg Law reporters.
Yet these early commentaries offered nothing on the foreseeable impact the new orders will have on the federal immigration bureaucracy. Basking in joyful reverie, I ruminated about how the several U.S. immigration agencies would respond to these new executive-branch constraints.
Must Federal immigration agencies sing in harmony with TAFCAEA and IAGD?
Reading the new executive orders more closely, I heard a discordant note, one that caused my high-flying heart to skip a beat. TAFCAEA, at § 11(d)(1), and IAGD, at § 7(d)(1), contain identically-worded exclusions that seem to foreclose any change to the many heavy-handed immigration-agency practices decried repeatedly in this blog (e.g., here, here, and here):
[Nothing] in this order shall apply . . . to any action that pertains to foreign or military affairs, or to a national security or homeland security function of the United States (other than procurement actions and actions involving the import or export of non-defense articles and services)(emphasis added).
For heaven’s sake, I thought, immigration inherently involves foreign affairs and national- and homeland-security functions of the United States. Hence, I feared, the Departments of State and Homeland Security would hasten to assert that TAFCAEA and IAGD in no way inhibit State’s and DHS’s standard operating procedures where interpretations change on the fly, and in so changing, routinely (and unfairly) surprise individuals and organizations petitioning for immigration benefits with new and ever-more-stringent eligibility criteria.
But then a phrase caught my eye, the exception to the exclusion provisions noting that TAFCAEA and IAGD would still apply to “the import . . . of . . . non-defense . . . services.” What might the importation of non-defense services cover? A keyword search of the Immigration and Nationality Act (“INA”) quickly homed in on two sections:
It’s hard to divine the unexplained rationale and import of the “import” exception, and I won’t tarry here with speculation. At bottom, it seems clear, however, that the INA treats as synonymous the importation of services with the importing of people. This suggests that TAFCAEA and IAGD should at least cover agency actions with respect to several nonimmigrant visa categories, including the H-1B (specialty occupation workers), H-2A (agricultural workers), H-2B (non-agricultural workers), H-3 (trainees), L-1 (intracompany transferees), O-1 (persons of extraordinary ability), P-1A (internationally recognized athletes), P-1B (members of an internationally recognized entertainment group), P-2 (performers or groups performing under a reciprocal exchange program), and P-3 (artists or entertainers in a culturally unique program). For my money, that’s a heckuva lot of newly-established procedural due process of law.
It remains to be seen whether, for the sake of consistency of process, USCIS will extend the importation-of-services principle to other petition-based temporary visas, such as the E-1 and E-2 (treaty traders and investors), E-3 (Australian specialty workers), Q-1 (cultural trainees), R-1 (religious workers) and TN (workers under the North American Free Trade Agreement), and possibly also to employment-based immigrant visa petitions.
What do TAFCAEA and IAGD require?
As due process enthusiasts, immigration lawyers welcome the new lyrical pronouncements from the pen of our president (all with emphasis added):
What will the impact of TAFCAEA and IAGD be on DHS, State and Labor?
TAFCAEA and IAGD haven’t been enacted on a clean slate. On October 9, President Trump made this clear:
Regulated parties must know in advance the rules by which the Federal Government will judge their actions. The Administrative Procedure Act (APA), 5 U.S.C. 551 et seq., was enacted to provide that “administrative policies affecting individual rights and obligations be promulgated pursuant to certain stated procedures so as to avoid the inherently arbitrary nature of unpublished ad hoc determinations.” Morton v. Ruiz, 415 U.S. 199, 232 (1974). The Freedom of Information Act, America’s landmark transparency law, amended the APA to further advance this goal. The Freedom of Information Act, as amended, now generally requires that agencies publish in the Federal Register their substantive rules of general applicability, statements of general policy, and interpretations of law that are generally applicable and both formulated and adopted by the agency (5 U.S.C. 552(a)(1)(D)). The Freedom of Information Act also generally prohibits an agency from adversely affecting a person with a rule or policy that is not so published, except to the extent that the person has actual and timely notice of the terms of the rule or policy (5 U.S.C. 552(a)(1)).
Unfortunately, departments and agencies . . . in the executive branch have not always complied with these requirements. In addition, some agency practices with respect to enforcement actions and adjudications undermine the APA’s goals of promoting accountability and ensuring fairness. (TAFCAEA, § 1)
It’s too soon to say just how the federal immigration agencies will react (and whether regulated parties might bring APA litigation challenges if the reactions fall short of the President’s commands in TAFCAEA and IAGD). At a minimum, failing to take action to comply, the agencies should see their topsy-like interpretations and guidance memoranda (which are almost never published in a single place, let alone as regulations) become dead letters.
Each of the agencies publishes online resources, mostly in disparate locations. USCIS publishes a policy manual, a redacted public version of its adjudicator’s field manual, and numerous policy memoranda. The Labor Department publishes fact sheets, online job directories, and regulatory pronouncements. The State Department publishes its Foreign Affairs Manual, a landing page for the Bureau of Consular Affairs, and many of State’s U.S. embassies and consulates publish procedures, interpretations, eligibility criteria, and policies, such as this one from the U.S. Embassy (London). It also maintains an email inquiry service known as LegalNet.com for attorney queries on visa issues, but never publishes its advisory opinions to consular officers (which often will include legal interpretations which trump the otherwise applicable principle of consular nonreviewability).
IAGD, at § 3, would put an eventual end to this practice:
Within 120 days of the date on which the Office of Management and Budget . . . issues an implementing memorandum under section 6 of this order, each agency or agency component, as appropriate, shall establish or maintain on its website a single, searchable, indexed database that contains or links to all guidance documents in effect from such agency or component.
An even earlier outcome will be viewable on February 6, 2020. That’s when USCIS’s illegally constituted unit known as the Fraud Detection and National Security (FDNS) Directorate, the Labor Department’s Wage and Hour Division (WHD), and U.S. Immigration and Customs Enforcement (ICE) – each of which conducts “conducts civil administrative inspections” – must “publish [their own] rule of agency procedure governing such inspections . . . and must conduct inspections of regulated parties in compliance with the rule.” Thus, for example, when that happy day arrives, FDNS site visits into H and L visas, WHD audits of H-1B compliance with DOL’s Labor Condition Application regulations, and ICE I-9 inspections and F-1 site visits will at last operate under transparent procedures.
* * *
It’s nothing short of music to an immigration lawyer’s ears."