Delays in Issuing Regulations Likely
Posted Jul 04, 2003

MurthyBulletin and MurthyDotCom readers inquire regularly and are surprised, and sometimes amazed, to learn that the American Competitiveness in the 21^st Century Act (AC21), passed in October 2000, still has no regulations interpreting this law or guiding us on the application of the law to specific circumstances. At various sessions of the June 2003 AILA Annual Conference in New Orleans, several government officials provided insight into the process necessary to issue even proposed regulations which are published in the Code of Federal Regulations (CFR).

Prior to March 1, 2003, drafted proposed regulations potentially would have to be circulated through various agencies and officials within Legacy INS and any other agencies or departments impacted by the regulations. Now, since March 1, 2003, with the U.S. Department of Homeland Security overseeing immigration functions, a drafted proposed regulation may need to circulate through the Bureau of Citizenship and Immigration Services (BCIS), the Customs and Border Protection (CBP), the Bureau of Immigration and Customs Enforcement (ICE), the U.S. Department of Homeland Security (DHS) General Counsel's office, the Directorate of Border and Transportation Security (BTS), the U.S. Department of State (DOS), the U.S. Department of Justice (DOJ), and any other potentially concerned agencies or departments. Each person who reviews the circulated drafted proposed regulations might possibly have comments to add to the drafted proposed regulations. Whenever anyone adds or subtracts anything from the drafted proposed regulations, the revised version now must be re-circulated to all the relevant parties. In addition, the same process is required for Policy Memos. These memos do not carry the force of law inherent in the regulations, but are often relied upon in the absence of regulations, as we have all seen.

As a result of this wide circulation process, it takes drafted proposed regulations several months, and often years, to undergo review prior to publication as proposed and/or interim regulations. Once comments are made by the public, a process that is legally required, the draft final regulations, with or without any modifications based on the comments, must be re-circulated following the same review process as with the initial draft. Since the transition from Legacy INS to the DHS, BCIS, CBP, and ICE is still underway, and multiple departments continue to sort their roles in the immigration process, proposed regulations for laws such as AC21 may still be somewhere in the distant future, rather than just around the corner, as we would have liked.

Sometimes delays in implementing regulations actually can help foreign nationals, however. Dea Carpenter, who was recently appointed the interim Chief Legal Advisor to BCIS on June 17, 2003, brought this fact to the attention of AILA attorneys who were complaining about the delay in issuing regulations. During the Conference she indicated that the absence of regulations can provide attorneys with greater flexibility in creatively, arguing how a particular law should be interpreted for the benefit of the client. As we have seen, there are often "loopholes" in the law, which regulations frequently "plug." While we all seek clarity, so that we can make decisions on a solid footing, those who are anxious to see regulations on laws such as AC21 would do well to remember the adage, "Be careful what you wish for, you just might get it." Although we are unhappy with the lack of clarity, we may be better off now, as long as our arguments are successful, since the BCIS is of the opinion that AC21 was passed in a different political and economic climate. Ultimately, the interpretations may not be as favorable as we hope.