Significance Of Letters
Do letters written by US Citizenship and Immigration Services (USCIS) employees to attorneys or
members of the public constitute official policy? The answer is “No,” according to a memo from
Thomas Cook, dated December 7, 2000, entitled “Significance of Letters Drafted by the Office of
Adjudications.” According to Mr. Cook, who was then the Acting Assistant Commissioner, Office of
Programs, legacy Immigration and Naturalization Service (INS), “The opinions contained in letters
written by this office are not binding on any Service officer (sic) they merely indicate the
writer’s analysis of an issue and may be useful as an aid in interpreting the law.” Mr. Cook
further goes on to state that “only the following items are considered official Service policy:
(1) Statute, (2) Regulations, (3) Precedent Decisions written by the AAO, (4) Policy
Although this memo was issued by Mr. Cook while he was with legacy INS, it has been recently
cited by the Vermont Service Center and the Administrative Appeals Office (AAO) in discounting
letters written by USCIS employees that have been relied upon by employers and foreign nationals
to advance an interpretation of the Immigration and Nationality Act. These letters are referred
to within the immigration bar as the “the common law,” which fill in the gaps because so few
regulations have been promulgated to interpret a statutory provision. For instance, the USCIS
still has to promulgate regulations on implementing important provisions of the 1996 law, such as
the 3-year and 10-year bars to reentry after an individual accrues unlawful presence in the US.
Similarly, no regulations have been promulgated with respect to implementing the provisions of
the American Competitiveness in the 21st Century Act of 2000.
Moreover, some of these letters provide further interpretation of an already promulgated
regulation, especially when there has been no clarification from a federal court on an ambiguous
regulation through a binding precedent. With respect to 8 C.F.R. § 204.5(k)(2), on January 7,
2003, Efren Hernandez III, INS Director of Business and Trade Services, clarified that for
purposes of I-140 immigrant petitions for members of the professions holding an advanced degree,
the “foreign equivalent degree” requirement does not mean that the foreign equivalent degree must
be in the form of a single degree. “Despite the use of the singular “degree,” it is not the
intent of the regulations that only a single foreign degree may satisfy the equivalency
requirement,” according to him. Mr. Hernandez reaffirmed this interpretation of the regulation
in another letter dated July 23, 2003. Unfortunately, these letters are no longer being used by
the Service centers or the AAO to interpret the regulations.
Promulgating a regulation is a more elaborate process than issuing an informal opinion or even a
policy memorandum. The government agency must first notify the public and invite comments before
it can finalize a regulation. While it is preferable to have more regulations that involve
public participation, informal opinion letters are extremely useful and provide an interim
substitute before the final promulgation of a regulation. Likewise, such letters are useful when
there is an ambiguous statutory or regulatory provision and no binding precedent. Indeed, even a
policy memorandum, which Mr. Cook has elevated to the same status as a statute, regulation and
AAO precedent decision, is not issued after notice and comment. Yet, it is binding on all
departments of the agency. Incidentally, Mr. Cook’s memorandum appears also to be binding!
Similarly, a letter should also be binding on all branches of an agency as it may have gone
through the same process as the formulation of a policy memorandum.
Unfortunately, this is not the case. Even prior to Mr. Cook’s memo, in Matter of Izummi,
22 I&N Dec. 169, 196 (Assoc. Comm. 1998) the AAO held that the General Counsel’s memo of legacy
INS pertaining to the endorsement of a particular investment structure under the EB-5 program was
not binding on INS adjudicating bodies such as the INS and the AAO. It should be noted that a
General Counsel memo is more akin to a policy memorandum than a letter.
Accordingly, when arguing cases on behalf of clients, practitioners should not expect Service
centers and the AAO to be bound by informal opinion letters from USCIS officials to attorneys.
On the other hand, while acknowledging that these letters are not binding, they can still be
persuasive in highlighting how a particular statute should be interpreted in the absence of a
regulation. Mr. Cook acknowledges this in his memo. Finally, these letters can also be useful
if one pursues litigation in federal court to demonstrate how a government agency has interpreted
a particular statute in the past in the absence of a regulation.
Significance Of Letters Drafted By The Office Of Adjudication.
About The Author
Cyrus Mehta Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices
immigration law in New York City and is the managing member of Cyrus D. Mehta & Associates,
P.L.L.C. He is the Chair of the Board of Trustees of the American Immigration Law Foundation and
recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Secretary of the Association
of the Bar of the City of New York and former Chair of the Committee on Immigration and
Nationality Law of the same Association. The views expressed in this article do not necessarily represent the views of ABCNY or AILF. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted in New York at 212-425-0555.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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