Law, Regulation, or Just an Opinion? Understanding U.S. Immigration Rules

When it comes to immigration law, it's crucial to understand which rules are legally binding and which are merely interpretations or opinions of government agencies. Misunderstanding these distinctions can lead to false expectations and even serious consequences for immigrants. Let’s break down the key differences between various legal sources.

1. Laws (Statutes)

   
   

Laws are passed by Congress and are mandatory to follow. They can create new rights and responsibilities for citizens and immigrants. For example, the Immigration and Nationality Act (INA) is the primary statute that governs the U.S. immigration system.

Although laws have the highest legal authority, they can be challenged in court if their content contradicts the Constitution. This applies both to their written form and their application by the government.

2. Regulations (Normative Acts)

   
   

Regulations are official rules that define how the government will apply the relevant laws. They are published in the Code of Federal Regulations (CFR) and have the force of law.

The process of creating regulations is governed by the Administrative Procedure Act (APA), which requires public hearings before new rules are introduced.

Key immigration regulations are found in the following sections of the CFR:

• Chapter 8 – Department of Homeland Security (DHS)

• Chapter 20 – Department of Labor (DOL)

• Chapter 22 – Department of State (DOS)

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Regulations can be challenged in court if the government violated the procedure for creating them or if they exceed the powers granted by the law.

3. Policy Memoranda

   
   

Government agencies often issue memoranda that explain how they will apply laws and regulations. These are not laws, but they define the agency’s policy.

Memoranda undergo legal review before publication, but they cannot introduce new laws or create rights and responsibilities not found in statutes and regulations. Although courts often consider agency policies, such documents can be challenged if they contradict the law or the Constitution.

4. Social Media and Public Statements

   
   

In recent years, the government has actively used social media to announce changes in policy. However, such posts do not have the force of law.

Unlike memoranda, posts on Twitter, Facebook, or an agency's website do not undergo strict legal review. They cannot create new laws and must stay within the bounds of existing statutes and regulations. If such information contradicts the law or the Constitution, it can be challenged in court.

We’ve compiled all the information on these sources in our convenient flyer, which you can download below.

Flyer_ Statutes.pdf

Download PDF • 642KB

How to Avoid Mistakes

Understanding the nuances of immigration law can be challenging. If you have any questions, Bloomrich Law Firm, P.C. is here to help. Contact us via email at info@bloomrich.com or schedule a consultation through our website.

Be cautious about the sources of information and trust only reliable legal resources!

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