LibGuides: Immigration Law: Immigration Regulations

Introduction

Some regulations have the force of law. This means that both the agency and regulated parties are bound by the rule. A legally binding rule is determinative on the issue. Other rules do not have the force of law and instead are advisory or provide guidance. Rules with the force of law must be developed according to certain procedures, while nonbinding rules are exempt from many procedural requirements. Nonbinding rules are are also called agency guidance, and are discussed under the agency guidance tab of this guide.

The Department of Homeland Security is the main federal agency that promulgates federal regulations dealing with immigration. The DHS regulatory agenda includes regulations issued by DHS components, including the following six operational components with regulatory responsibilities:

U.S. Citizenship and Immigration Services (USCIS)
U.S. Coast Guard (USCG)
U.S. Customs and Border Protection (CBP)
Federal Emergency Management Agency (FEMA)
U.S. Immigration and Customs Enforcement (ICE)
Transportation Security Administration (TSA)

The US Department of State regulates visas.

These regulations are published first in the Federal Register, and then codified in the Code of Federal Register (C.F.R.). The regulations go into more detail than the statute. They have the force of law, but cannot conflict with the US Code, Executive Orders or the US Constitution.

Administrative Procedures Act

5 U.S. Code § 551
The Administrative Procedure Act gives agencies the power to create rules related to the enforcement of a statute.
5 U.S. Code § 553
Informal rulemaking usually requires an agency to publish a Notice of Proposed Rulemaking in the Federal Register and provide the public an opportunity to comment on the proposed rule.
5 U.S. Code § 556
Formal rulemaking requires an actual hearing where evidence is received. Most rules do not have to follow the formal rulemaking procedure.

Immigration Regulations

Many of the federal regulations relating to immigration are found at Title 8 of the C.F.R. Other relevant titles include:

Title 6 – Domestic Security

Title 20 – Employee’s Benefits, Part 656 Labor Certification Process for Permanent Employment of Aliens

Title 22 – Foreign Relations, Secs. 40.1 - 46.7 Visas, Secs. 50.1-53.4 Nationality and Passports, Part 65 Foreign Students

Title 28 – Judicial Administration., Part 0, Subpart U Executive Office for Immigration Review, S ecs . 65.80-65.85 Immigration Emergency Fund, Sec. 200.1 Eligibility for Protection under the Convention Against Torture, Sec. 1100.29 The roles and responsibilities of federal law enforcement, immigration, and Department of State officials under the Trafficking Victims Protection Act (TVPA).

Title 42 – Public Health, Part 34 Medical Examination of Aliens, Part 71 Foreign Quarantine

Title 45 - Part 50 US Exchange Visitor Program

Links

Administrative Law LibGuide
Cleveland-Marshall College of Law Library
A Guide to the Rulemaking Process Prepared by the Office of the Federal Register
Office of Information and Regulatory Affairs : Office of Management and Budget
The Unified Agenda and Regulatory Plan provide uniform reporting of data on regulatory and deregulatory actions under development throughout the Federal government. Search for Department of Homeland Security to find proposed regulations for that agency.
Who does what in US Immigration
Migration Policy Institute

The Federal Register (FR)

The Federal Register (FR) is a chronological publication, analogous to US Statutes at Large.
It is published daily (except weekends and official federal holidays) by US Office of the Federal Register; first issue March 14, 1936.

Available from:

(a) GPO Govinfo 1936 - to the present
(b) Federal Register 2.0 - Organized for the public, ability to comment, plain language summaries. From the National Records and Archives Administration.

Materials required (by statute) to be published in Federal Register:
1. Presidential documents – Proclamations, Executive Orders, etc.
2. Rules and Regulations
3. Proposed Rules – text, regulatory agendas, and hearings notices
4. Notices – Sunshine Act meetings, etc.

Finding Aids (e.g., Table of Contents, List of CFR Parts Affected) included in each FR issue.
Monthly index; each index issue cumulates earlier index issues of that year. December issue serves as final annual index.

Regulations.gov
Allows you to see the latest regulations from all federal departments and agencies and to participate in the regulatory process by submitting comments on proposed rules.

Controversy over regulations

Supreme Court cancels arguments on Trump immigration policy Title 42
CNBC 2/16/23. Because the COVID health emergency ended on 5/11/23
BIDEN ET AL. v. TEXAS (2022)
US Supreme Court says Biden has authority to end Remain in Mexico policy.
Termination of the Migrant Protection Protocols Program
DHS Memo date 6/1/21
Executive Order on Creating a Comprehensive Regional Framework to Address the Causes of Migration, to Manage Migration Throughout North and Central America, and to Provide Safe and Orderly Processing of Asylum Seekers at the United States Borde
2/2/21 Biden orders a review of the Migrant Protection Protocols, the public charge rule, and the separation of children from their parents.
Biden rescinds Trump's 'public charge' rule
The Hill 3/11/21
US Citizenship & Immigration Services is no longer considering an applicant’s receipt of Medicaid (except for long-term institutionalization at the government’s expense), public housing, or (SNAP) benefits for immigration purposes
Will Filing For Unemployment Hurt My Green Card? Legal Immigrants Are Afraid
NPR 5/12/20

The CFR

Code of Federal Regulations (CFR)

The CFR is an official compilation of codified regulations.

It is arranged by subject, analogous to US Code. However, CFR Title numbers do not always match USC Title numbers. [e.g., 26 USC – Internal Revenue Code and 26 CFR – tax regulations; but 20 USC – Education and 34 CFR – education regulations.]

The first edition published in 1939 (for regulations in effect as of 6/1/38). Paperbound volumes published annually (since 1967). US Office of the Federal Register revises CFR on quarterly basis – January 1st – Titles 1-16; July 1st – Titles 28-41; April 1st – Titles 17-27 October 1st – Titles 42-50.

Available from:

eCFR - The Electronic Code of Federal Regulations (e-CFR) is a currently updated version of the Code of Federal Regulations (CFR). The CFR is also available from the Legal Information Institute at Cornell Law School.

Division of CFR's Fifty Titles:

Titles divided into Chapters – Chapters designated to Agencies; numbered with roman numerals; Chapters sometimes have Subchapters, designated by capital letters.

(b) Chapters divided into Parts.

CFR sections are often inter-related. Even if one has a cite to a particular Section, one may want to review the rest of the Sections in that Part.

Each CFR Part has:

(a) Authority Note – generally, at “beginning” of each Part (i.e., at end of Part’s table of contents, before actual text begins); statutory/executive enabling authority under which regulations issued.

(b) Source Notes – at end of each Section in Part; citation and date of Federal Register in which Section last published in full.

CFR Index and Finding Aids published annually. Not comprehensive, and usually refers to Parts, not Sections within Parts. Includes Parallel Table of Authorities and Rules.