With the 2012 presidential campaign in full throb, candidates Obama and Romney are embracing "the vision thing" -- that nemesis of the first President Bush whose reelection effort reportedly failed because he did not "frame his positions on individual issues in a compelling and unified manner." The two de facto nominees paint a starkly different picture of where each would take America and of government's role in getting us there. Surprisingly, however, on one point they agree: The cumulative burden of federal regulations is simply overwhelming.
For his part, President Obama took aim at the glut of regulations "which may be redundant, inconsistent, or overlapping" by issuing Executive Order 13563 in January last year. Implementing the President's mandate, Cass Sunstein, OMB Administrator, released a memo to the heads of "Executive Departments and Agencies" two months ago, requiring greater public participation and consideration of how to reduce the profusion of conflicting and burdensome regulations, especially by lightening the load on start-ups and small businesses.
Not to be undone, Mitt Romney, the presumed Republican nominee, would impose "a regulatory cap" set at "zero" to limit "the rate at which agencies could impose new regulations":
[If] an agency wishes or is required by law to issue a new regulation, it must go through a budget-like process and identify offsetting cost reductions from the existing regulatory burden. While not a panacea for the problem of over-regulation, implementation of this conservative principle would go some distance toward halting the relentless growth of the regulatory state.
Readers of Nation of Immigrators know, however, that -- more often than not -- I assail the lack of regulations and the expedient of ersatz rulemaking via press release, web posting and FAQ. Still, there is one pernicious immigration regulation that causes me to agree with the candidates about the evil of overregulation.
A form of stealth rulemaking that I simply cannot abide, it stems from a simple dependent clause -- not even a complete sentence -- embedded in an obscure immigration regulation, 8 C.F.R. § 103.2(a)(1), that dates back at least to 1994. It was first adopted by the old INS (the Immigration and Naturalization Service), and later reaffirmed by U.S. Citizenship and Immigration Services (USCIS). It provides:
Every application, petition, appeal, motion, request, or other document submitted on the form prescribed . . . shall be executed and filed in accordance with the instructions on the form, such instructions (including where an application or petition should be filed) being hereby incorporated into the particular section of the regulations in this chapter requiring its submission. (Emphasis added.)
On first blush, the regulation makes sense. What's so bad about a harmless command that merely allows a change of government mailing address to be noted in new instructions to the form? Why should the feds be required to republish a regulation, with multi-agency review and OMB clearance, if the only change is the place where immigration petitions are filed? If that's all the regulation means, I make no quibble. But broadly interpreted, as bureaucrats are wont to do, the clause is a ploy to evade a slew of federal statutes and presidential directives including the Administrative Procedure Act, the Regulatory Flexibility Act, the Paperwork Reduction Act, Executive Orders 12866 and 13563 and OMB Circular A-4.
Consider just two examples: Form I-9 (Employment Eligibility Verification) and Form I-129 (Petition for a Nonimmigrant Worker). The I-9 is a one-page form with a list of acceptable documents of identity and work permission on the flip side. The I-129 is a workhorse. Its submission is required for an alphabet soup of lettered work visa categories, including the E, H, L, O, P and Q.
USCIS has issued two sets of instructions for the I-9. One is just three pages. The other, Form M-274, the "Handbook for Employers," subtitled, "Instructions for Completing Form I-9," is a 64-page behemoth, a tome chockablock with directions that are not found in any regulation. Take for example these M-274 instructions, involving (a) the interplay of Form I-9 and the government's supplemental online database, E-Verify, and (b) verification and reverification procedures for persons granted Temporary Protected Status (TPS):
[(a)] Providing a Social Security number on Form I-9 is voluntary for all employees unless you are an employer participating in the USCIS E-Verify program, which requires an employee’s Social Security number for employment eligibility verification.
* * *
[(b)] When DHS extends a specific TPS country designation, it sometimes issues a Federal Register notice containing a temporary blanket automatic extension of expiring Employment Authorization Documents (Forms I-766) for TPS beneficiaries from that country to allow time for USCIS to issue new Employment Authorization Documents (Forms I-766) bearing updated validity dates. The USCIS website and Federal Register will note if Employment Authorization Documents (Forms I-766) have been automatically extended for TPS beneficiaries from the particular country and to what date. The automatic extension is typically for six months, but the time period can vary. . . . You may accept an expired Employment Authorization Document (Form I-766) that has been auto-extended to complete the Form I-9, provided . . . [certain] information appears on the card as shown in the box at the top of the page.
Only a bureaucrat hermetically sealed within the Beltway Bubble, or one who assumes that every American employer has graduated with a speed-reading certificate, could display the chutzpah to suggest, as the three-page I-9 instructions proclaim in the section that provides the Paperwork Reduction Act notice:
The public reporting burden for this collection of information is estimated at 12 minutes per response including the time for reviewing the instructions and completing and submitting this form. (Emphasis added.)
Bureaucratic chutzpah becomes even more curdled and rancid when viewed in light of another USCIS communication, the agency's online news source, "I-9 Central." As the American Immigration Lawyers Association has reported, inconsistencies abound between I-9 Central and the M-274's "instructions" (which I suppose according to the cited regulation have the force of a regulation).
The situation is just as disturbing when this wayward rule holds its sway over the instructions to Form I-129 which likewise supposedly exert regulatory force. The I-129 instructions purport to grant the Homeland Security Department and USCIS a broad range of plenary powers:
The Department of Homeland Security has the right to verify any information you submit to establish eligibility for the immigration benefit you are seeking at any time. Our legal right to verify this information is in 8 U.S.C. 1103, 1155, 1184, and 8 CFR parts 103, 204, 205, and 214. To ensure compliance with applicable laws and authorities, USCIS may verify information before or after your case has been decided.
Agency verification methods may include but are not limited to: review of public records and information; contact via written correspondence, the Internet, facsimile or other electronic transmission, or telephone; unannounced physical site inspections of residences and places of employment; and interviews. (Underlining in original; bolding added.)
There's just a teensy-weensy problem with this full-throated trumpeting of power. Simply stated, it ain't so. None of the cited statutory sections or regulations allows USCIS to conduct "unannounced physical site inspections of residences and places of employment." A pesky little provision known as the Fourth Amendment to the U.S. Constitution prohibits such jackboot tactics by federal officers:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Another way of putting the problem of publishing regulations by the unlawful shortcut of amending the text of immigration forms in perspective is to address it in terms of pure administrative law, as the author of the Federal Regulations Advisor blog, Lee Beck (who is now in private practice after a 23-year career at the Justice Department and DHS reviewing immigration regulations), phrases it:
Forms can only provide general information and instructions on how to fill out the form – forms cannot impose substantive requirements that can be enforced against an applicant or petitioner. Substantive requirements must be properly adopted in a regulation. Put another way, if a petitioner or applicant is required to act in a certain way, a regulation is required to tell the petitioner or applicant to act that way. Form instructions don’t have greater legal effect than guidance, memos, policy, or manuals.
That some federal officers, such as the swoop-down visitors from USCIS's Fraud Detection and Nationality Security Directorate, would try to defy Constitutional protections and black-letter administrative law through the back-door rewriting of the instructions to an immigration form is no surprise. It merely confirms what essayist, Jerry Pournelle, described as his "Iron Law of Bureaucracy":
[In] any bureaucratic organization there will be two kinds of people: those who work to further the actual goals of the organization, and those who work for the organization itself. . . .The Iron Law states that in all cases, the second type of person will always gain control of the organization, and will always write the rules under which the organization functions.
Angelo Paparelli has been practicing business-sponsored immigration law for over 20 years, and is the managing partner of Paparelli & Partners LLP in Irvine, California. He is a nationally recognized speaker, published author and leading expert on cutting-edge business-related immigration issues, including the immigration consequences of mergers, acquisitions, reorganizations and other business changes, consular visa practice, audits of employers' compliance with immigration and labor regulations, and employment-based work visas. Mr. Paparelli is certified as a Specialist in Immigration and Nationality Law by the State Bar of California, Board of Legal Specialization.