Changes to the nation’s immigration laws is roundly considered to be the territory of Congress. In fact, the last major wholesale change to the nation’s immigration laws implemented by Congressional action occurred during the Clinton Administration in 1997. As such, Congressional unwillingness to update the country’s immigration statutes has left the United States with an arcane set of rules ill-equipped to address the country’s needs in our current modern economy. This has resulted in the use (and arguably overuse) of Executive Orders and agency rule changes that seek to have the power of Congressional statute but are often upended by (you guessed it) lawsuits and never-ending litigation. While this may be music to the ears of any practicing attorney, these non-Congressional directives are an exceedingly poor way of implementing a coherent policy that is to the national benefit.
For example, in February 2020, the US Citizenship and Immigration Service unveiled the I-944 Declaration of Self-Sufficiency, a form designed for the explicit purpose of reducing “public charges” in the United States; put another way, USCIS sought to limit green cards and immigration benefits to those individuals that may ultimately end up on public benefits programs, such as food stamps, low income housing or Medicaid. Before requiring green card applicants to now complete the I-944, USCIS was required to comply with the Administrative Procedures Act, a statute that requires agency to undertake a holistic analysis of the implications of any change in rules, while also soliciting comments from the public at-large as to the pros and cons of a rule change.
The form itself has been criticized for being an onerous 21-page jewel of bureaucratic nonsense, requiring applicants to furnish reams of paperwork to USCIS, including asset valuations, language credentialing, months of bank statements and credit reports. The policy behind the I-944 admittedly uses an applicant’s age as a negative factor, thus making obtaining a green card for a young child more difficult than for a working-age parent, potentially setting up for the absurd result of a green card approval for the parent and a denial for her infant.
Shortly after introducing the I-944, the agency was sued by immigrant-friendly groups arguing that the I-944 form was an overreach by the agency and could not stand. The courts largely agreed with these groups, temporarily stopping USCIS from using the I-944 form until the court could review all evidence from both sides and take arguments. Additional litigation followed, as the government argued that halting the forms use would cause “irreparable harm” and that public interest favored the use of the form; the US Supreme Court eventually lifted the temporary stay, allowing USCIS to again require the use of the I-944 form. While the decision of whether to temporarily halt the use of the I-944 form was winding through months of appeals, the original parties went forward with presenting arguments and despite the Supreme Court’s decision to lift the temporary ban on the I-944 form, the original district court placed a permanent ban on the use of the I-944, now setting up the matter for (surprise!) more appeals and lawsuits.
The government’s defeat in the matter of the I-944 is similar to other situations, including the Courts’ rejection of the government’s position with respect to eliminating the DACA program, estopping the issuance of specific visas at the US consulates abroad and the power of Immigration Judges. While the Trump Administration has certainly been effective in pushing for large-scale changes to the interpretation of existing law through the use of Executive Orders and rule interpretations, including a recent and sprawling change to the administration of the H-1B visa program, these changes have been met with skepticism by the courts. This is a friendly reminder that despite the cynicism that pervades our national discourse, the branches of government still act as a check and balance on one another. And while this article is written on the cusp of a national election (which this author hopes that is decided by the time this article is being read), we can only collectively hope that Congress gets in on the act and helps to forge a pathway to better retrofit the country with a set of laws that maximize the obvious value that immigration provides to our economy, society and dialogue.