Another day, another instance of the Biden political appointees at the Department of Homeland Security ignoring laws that they dislike.
Instead of going through notice and comment rulemaking, as required under the Administrative Procedure Act, to revise regulations, or getting Congress to pass legislative changes, the Biden administration seems to believe it can unilaterally create its preferred immigration system with impunity. The most recent example was yesterday’s announcement by U.S. Citizenship and Immigration Services (USCIS) that it will allow applicants to submit incomplete applications.
To a casual observer this might not sound like a big deal, but it is.
The requirements for properly filing applications and petitions are clearly spelled out in Title 8 of the Code of Federal Regulations (CFR). Specifically, 8 CFR 103.2 says:
§ 103.2 Submission and adjudication of benefit requests.
(a) Filing -
(1) Preparation and submission. Every form, benefit request, or other document must be submitted to DHS and executed in accordance with the form instructions regardless of a provision of 8 CFR chapter I to the contrary. The form's instructions are hereby incorporated into the regulations requiring its submission. Each form, benefit request, or other document must be filed with the fee(s) required by regulation. All USCIS fees are generally non-refundable regardless of if the benefit request or other service is approved, denied, or selected, or how much time the adjudication or processing requires. Except as otherwise provided in this chapter I, fees must be paid when the request is filed or submitted.
Ideally, applicants and petitioners only submit “perfect” applicants and petitions, meaning a completed form with all evidence and fees included that efficiently allows an adjudicator to make an approve/deny decision. Reality is different and the adjudicative process drags on inefficiently.
As a threshold matter, USCIS does not even begin to adjudicate a benefit request until the agency accepts the request and processes the required fees (if any). According to the USCIS Policy Manual, “In order for USCIS to accept a benefit request, a submission must satisfy all applicable acceptance criteria.” The agency explains that this generally means (1) a complete, properly executed form, with a proper signature; (2) correct fees; and (3) the required initial evidence for intake purposes, as directed by the form instructions.
Accepting the form does not guarantee approval for the benefit request; it is merely the threshold requirement that initiates adjudicator review. If the officer is unable to make an adjudicative decision, he or she may issue a Request for Evidence (RFE) to give the requestor an opportunity to supplement the record. When adjudicators issue RFEs, it delays the final determination and contributes to backlogs.
On the other hand, USCIS is supposed to reject benefit requests that do not meet these minimum requirements. As outlined in the Policy Manual, reasons for rejection may include (1) incomplete benefit request; (2) improper signature or no signature; (3) use of an outdated version of a USCIS form at time of submission; (4) principal application error; and (5) incorrect fee, including missing fees or fees in the wrong amount.
In 2019, senior Trump administration political leadership at USCIS discovered that the agency was accepting woefully incomplete Forms I-589, I-612, and I-918 in violation of the form instructions and regulations. For those (understandably) unfamiliar with USCIS form numbers, the three forms at issue are:
- Form I-589, Application for Asylum and for Withholding of Removal;
- Form I-612, Application for Waiver of the Foreign Residence Requirement (under Section 212(e) of the Immigration and Nationality Act, as Amended); and
- Form I-918, Petition for U Nonimmigrant Status.
By way of example, the form instructions for Form I-589 say the following:
Part I. Filing Instructions. Section V. Obtaining and Completing the Form.
You must type or print all of your answers in black ink on Form I-589. Your answers must be completed in English. Forms completed in a language other than English will be returned to you. You must provide the specific information requested about you and your family and answer all the questions asked. If any question does not apply to you or you do not know the information requested, answer "none," "not applicable," or "unknown." You must provide detailed information and answer the questions as completely as possible. If you file your application with missing information, we may return it to you as incomplete. [Emphasis added.]
The agency’s past practice of accepting these benefit requests in violation of the rejection criteria and regulations was not merely a technical violation. Instead, the agency was complicit in giving work permits to illegal aliens who are ineligible for the underlying benefit sought and contributed to the record backlogs on various benefit types.
For example, the system is overrun with fraudulent, frivolous, and otherwise non-meritorious asylum claims because it is free to file an asylum application and the (illegal) alien can get a work permit just on the basis of a pending application. The initial work permits are also free.
The U visa is another oft-exploited program by illegal aliens. USCIS was accepting notable numbers of Form I-918 (another free form) without basic information included (in some instances full pages were left blank), which again gave a work permit to illegal aliens without a valid claim for relief.
The Trump leadership team at USCIS properly ended this practice and began applying the rejection criteria spelled out on the form instructions. Even though the burden is always on the alien to establish eligibility for a benefit, critics derided the move to adhere to regulatory requirements as “unfairly” rejecting forms due to blank spaces for allegedly inapplicable fields.
In a benign sounding web alert entitled “USCIS Confirms Elimination of ‘Blank Space’ Criteria”, the agency announces it “has reverted back [sic] to the rejection criteria that existed for these forms before October 2019. USCIS will no longer reject Form I-589, Form I-612 or Form I-918 if an applicant leaves a blank space.”
The implications of this cannot be understated. Tens of thousands of ineligible illegal aliens will obtain work permits and slow-walk the inevitable denial (assuming adjudicators still apply the current laws on the books). Accepting a deluge of incomplete applications will divert limited USCIS resources from processing properly filed benefit requests, adding unnecessary (and unfair) delays in the adjudicative process for those who follow the rules. In the U visa context, it is doubtful that U.S. Immigration and Customs Enforcement (ICE) will remove any illegal alien with a pending U visa petition, no matter how bogus the claim is.
If the Biden administration wants to change the rejection criteria for the forms in question, it has that right, regardless of how misguided that may be in practice. However, this administration, like its predecessors, is bound by the APA if it wants to make changes. By ignoring the APA, the Biden administration is cutting legal corners to reach its policy objectives.