Murthy Attorneys Meet USCIS Chief Counsel in January 2013

A number of Murthy Law Firm attorneys attended an American Immigration Lawyers Association (AILA) D.C. Chapter meeting on January 16, 2013 at which Stephen Legomsky, U.S. Citizenship and Immigration Services (USCIS) Chief Counsel, and Claudia Salem, Chief, Adjudications Law Division of the Office of Chief Counsel (OCC) presented helpful updates regarding ongoing immigration initiatives. As explained here, the OCC is involved in advising the USCIS on wide ranging legal and policy issues.

OCC Provides Guidance to USCIS, SCOPS, AAO, FDNS

The Office of the Chief Counsel (OCC) primarily provides advice on law and policy matters to USCIS officials. The OCC interacts with all divisions and programs of the USCIS, including USCIS Field Offices, Service Center Operations (SCOPS), the Administrative Appeals Office (AAO), Fraud Detection and National Security (FDNS), and Refugee, Asylum and International Operations (RAIO). The OCC has about 185 attorneys, of whom 75 are based in Washington D.C.

OCC as Government’s Lawyers Seek to Ensure Public Trust

The OCC responds to thousands of requests for legal advice from within the USCIS as well as from other governmental entities within the Executive Branch. Mr. Legomsky stated that the OCC zealously represents the USCIS and other government entities as its clients. This representation is to include those situations in which there are more than one possible interpretations of the law. He believes the OCC’s duty is to faithfully follow the law and ensure just outcomes, rather than being an organization that purely seeks to win or to make the other side lose. One important aspect of its role in providing advice is, when appropriate, supporting prior positions to ensure continuing public trust.

OCC and USCIS Seek Transparency and Public Input

It was explained that USCIS Director Alejandro Mayorkas wants to enhance transparency though public conversations and stakeholder meetings. The OCC also seeks to be transparent and communicative, but must be careful not to give preferential access to any particular group. For that reason, the organization sometimes takes the step of publicly posting notes regarding the contents of its meetings with members of the public.

Issuance of Memos in Lieu of Regulations

In order to issue regulations, through the required process of publishing proposed rules in the Federal Register, it is necessary to obtain multiple levels of approvals from a number of agencies. Therefore, the USCIS often looks to other less-convoluted options. As long-time MurthyDotCom readers know, the USCIS commonly makes changes in policy and procedure through the issuance of memoranda. Similar to the formal rule-making process that allows for public comment, the Director has increasingly solicited public comments on key topics in order to maintain the transparency required by the more formal process of enacting rules.

Using AAO Decisions as Precedent Decisions

The USCIS also plans to make greater use of the designation of AAO decisions as precedent decisions. Normally, decisions from the AAO apply only to the specific case, and are not considered to be binding precedent. However, the USCIS can select particular AAO decisions for designation as precedent decisions. This means that the interpretations set forth in those decisions control the USCIS for future decisions.

Current Topics and Projects of OCC

The OCC is involved with the legal issues related to the USCIS transformation process. In particular, it is connected to matters regarding the creation of the online filing system known as the USCIS Electronic Immigration System (USCIS ELIS). USCIS ELIS and transformation have been reported to MurthyDotCom in earlier NewsBriefs, including our 08.Jan.2013 article, USCIS Challenges with Transformation, which discusses efforts to address some of the technical obstacles.

Current OCC Focus on I-601A Provisional Waivers

One of the OCC’s current significant issue areas is the use of the I-601A provisional waiver process for unlawful presence. Once this procedure is implemented, the USCIS will monitor the volume of filings under this process. This will allow for decisions as to whether the procedure can be expanded into other substantive categories. As explained in a USCIS Press Release, the provisional waiver procedure is limited to cases in which an immediate relative of a U.S. citizen seeks to obtain a waiver of unlawful presence. The OCC will also explore the necessity of any additional procedural safeguards, such as appeals and motions to reopen / reconsider denials of I-601A filings.

Use of DACA Filings for DREAMers

The speakers stated that, as of the date of the meeting in January 2013, the number of requests under the Deferred Action for Childhood Arrivals (DACA) program has been far short of what was expected. They expressed an interest in gaining further insights into the reason for this lack of full participation in the program.

EB5 Investor Update

In response to questions, the OCC advised that the USCIS is adding staff to enhance the operation of the EB5 investor program. The EB5 program is being relocated to Washington D.C. There has been an increase in the use of the EB5 program, and there is a possibility that the annual 10,000 limit could be reached this fiscal year. They expect to issue guidance on EB5 matters that are in need of clarification.

Conclusion

We at the Murthy Law Firm appreciate Mr. Legomsky’s and Ms. Salem’s willingness and the time they spent to provide insights into their work at the OCC, as well as the updates they provided on current concerns in immigration. It is always helpful to obtain the government’s viewpoint on the issues we face daily. Their thoughts and updates provide us with insight into future trends.

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