Don’t Get So Uptight. It’s Only a Guideline.

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Many people in the immigration field are familiar with the “policy” memorandum issued in January 2010, known as the “Neufeld Memo” on H-1Bs. The law firm of Greenburg Traurig recently sued USCIS over this outrageously inappropriate and legally irresponsible change in policy. In response, the USCIS has just filed a response arguing that a Preliminary Injunction against the Neufeld Memo should not be granted. You are going to love the reason why:
Moreover, the guidance memorandum at issue in this case is not subject to the notice and comment rulemaking requirements of the APA. USCIS’s memorandum merely sets forth a general and flexible framework to guide agency adjudicators in the exercise of their discretion. The memorandum simply refines the contours of an already existing legal norm set forth in the agency’s regulation. Under these circumstances, the memorandum falls well within the contours of a policy statement or interpretive guidance, as defined by the D.C. Circuit, and is accordinglyexempt from the notice and comment rulemaking.

Wait! Does that say what I think it says? The Neufeld Memo is NOT policy? Rather, it is “contour refining” guidance to adjudicators? Can you see the milk shooting out my nose? Hopefully, the Federal Court Judge will see through this charade. The USCIS is using the oldest legal argument in the books–claiming something is not what it plainly appears to be. Are they really saying that Service Center Adjudicators are free to ignore this “contour refining guidance”? Really?

The real problems remain while USCIS plays word games with the federal court. Poor training by USCIS of its adjudicators, rogue adjudicators doing what they think the big boss in D.C. wants them to do (restrict legal immigration), and failure of oversight by USCIS HQ types over their Service Center operations. Now they want more money to continue to give this poor level of service. Will we ever see Congress step in here and get to the bottom of this government agency?

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Kuck Immigration Partners

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