Court of Appeals Finds USCIS Acted Outside the Law

Thursday, the Ninth Circuit Court of Appeals issued a simple but clear reminder to the United States Citizenship and Immigration Services (USCIS) that it must act within the bounds of the law. The issue before the court was whether USCIS could properly deny an employment-based, “extraordinary ability” visa because the petitioner had not demonstrated “the research community’s reactions to his [scholarly] publications” – an arbitrary requirement with no justification in the law. The court, in Kazarian v. USCIS, found that USCIS unlawfully imposed a requirement on the petitioner that was not found in the regulations. The court said that “neither USCIS nor an AAO may unilaterally impose novel substantive or evidentiary requirements beyond those set forth [in the regulations].” In other words, USCIS cannot bypass the law.

Unfortunately, what happened in this case is not an isolated incident, and therefore immigration advocates nationwide warmly welcome the court’s admonishment of the agency. There are countless examples of the immigration agencies adding new requirements or additional bars to immigration applications that have no basis in law. Over the past few years, the American Immigration Council’s Legal Action Center (LAC) has challenged several unlawful agency practices and has forced the government to change its policies. Successful LAC challenges include:

• The agency attempted to preclude “arriving aliens” (a subset of parolees) who are in removal proceedings from applying for adjustment of status even though the statute clearly made them eligible. After successful litigation challenging this policy, the agency changed its position.
• USCIS adopted regulations requiring foreign physicians who have practiced in medically underserved areas of the United States to meet requirements not authorized by Congress before they are eligible for adjustment of status. The court of appeals said that the agency’s policy was in conflict with the law and struck down the regulation.
• USCIS was requiring employment-based third preference (EB-3) workers to have a bachelor’s degree or a single foreign equivalent degree even though the statute allows a person to qualify for EB-3 classification by demonstrating that she possesses the equivalent of a bachelor’s degree based on the combination of education and employment experience. The court concluded that USCIS had no authority to limit eligibility in this way.

In addition, the LAC currently is challenging an immigration court regulation that impermissibly adds a geographic limitation to the statutory right to file a motion to reopen, even though the statute contains no such limitation. Already, two courts of appeals have found that this limitation is unlawful.

Immigrants and their advocates must be vigilant. When the immigration agencies operate outside the law, they must be held accountable. As the Ninth Circuit reminded us this week, the courts provide necessary oversight of government-decision making and help to ensure that the government is playing by the rules.