Easing the Guidance Document Dilemma Agency by Agency: Immigration Law and Not Really Binding Rules

Immigration law relies on rules that bind effectively, but not legally, to adjudicate millions of applications for immigration benefits every year. This Article provides a blueprint for immigration law to improve its use of these practically binding rules, often called guidance documents. The agency that adjudicates immigration benefit applications, United States Citizenship and Immigration Services (USCIS), should develop and adopt its own Good Guidance Practices to govern how it uses guidance documents. This Article recommends a mechanism for reform, the Good Guidance Practices, and tackles many complex issues that USCIS will need to address in creating its practices. The recommended reforms promote increased accessibility, transparency, and fairness for immigration law stakeholders, including unrepresented parties. This Article also contributes to the larger administrative law debate about guidance documents. Guidance documents present a conundrum for administrative law because they have powerful positive and negative features. Because the Administrative Procedure Act does not require agencies to consider public input in the crafting of these rules, agencies may respond more quickly and flexibly than notice and comment rulemaking would allow. On the other hand, an agency policy statement (a type of guidance document that explains an agency’s current thinking on a particular issue) is effectively binding even though it is not legally binding. Applicants are free to argue in an adjudication that a different approach should apply. Yet, stakeholders tend to follow the rule announced in the policy statement as if it were legally binding. Thus, there is a practically binding effect without the opportunity for notice and comment. In developing a prescription for USCIS, this Article concludes that the best approach to reforming agency use of guidance documents is an agency-by-agency approach. It rejects a one-size-fits-all approach in favor of the opportunity for each agency to formalize its own practices. Such tailored reform recognizes that every agency is different, with its own guidance culture and communities of stakeholders. This approach is designed to ease the negative effects of guidance documents while maximizing their positive features.