Sources of Immigration Law

Immigration law is set by the U.S. federal government.  While some state and city governments have recently passed laws affecting foreign nationals, there are serious questions about their enforceability.  

In general the federal regulatory process looks like this:

1. Congress passes and the president signs a law regarding immigration.  These are known as Public Laws and may broadly be referred to as acts or statutes.  While there are some laws that are specifically written to address only immigration concerns, much of the immigration laws are contained in unrelated bills. Many, but not all of these laws, are written as amendments to, or changes to the "Immigration and Nationality Act."  
2. The law establishes the policy of the federal government.  The actual policies themselves may not be clearly stated, as the law may simply direct others to take an action or prohibit others from taking an action.  Sometimes it is necessary to refer to the "legislative history" of the law to determine exactly what the congress was trying to achieve.  Legislative history is generally committee reports that were created to explain the reasons the law was written and how the law will achieve those aims. It may also include testimony at hearings and reports by government and congressional offices.  Not all legislation has useful legislative history.  
3. The implementation of the laws is delegated to a department or agency of the U.S. government.  Changes to Immigration law will often effect more than one department or agency.  For example, a law changing the labor protective provisions of the H-1B program will usually impact, the Department of Homeland Security (and one or more of its agencies), the Department of Labor, the Department of State, and the Justice Department. 
4. Implementation at the Department or Agency level is frequently governed by policies and procedures which the department or agency has written into law and published as federal regulations.  The procedures the department or agency uses in writing and implementing regulations is governed by a law known as the "Administrative Procedures Act."  There are normally additional laws, rules and executive orders that must also be complied with.  For example there is normally a requirement to address privacy concerns under one or more privacy laws.  
5. Some laws give a very broad grant of authority to the agency concerned.  For example, the Federal Aviation Act, created the FAA and delegates most all safety and operational activities to the discretion of the FAA. On the other hand, the Internal Revenue Code is administered by the IRS and is forever being fiddled with by congress to achieve public policy goals.  The IRS does publish regulations as well, but the statute is frequently changing and very detailed.  The immigration laws fall somewhere between these two extremes.  The law is very detailed about some things, such as the number of immigrants admitted each year, but leaves much of the details to the agency, such as the evidence needed to prove your case. 
6. The laws made by the agencies are known a "regulations" and the process for making them is known as "rule making."  This is not the only source of administrative law.  There may also be internal documents such as procedures manuals and memorandum providing guidance to the public and agency employees, and most importantly decisions by judges. 
7. Judges can be either federal judges appointed by congress, known as Article II Judges, who are appointed for life and can only be removed by congressional action, or administrative law judges holding temporary appointments, who work for the agency at the general discretion of the agency leadership and who do not have the protections of lifetime appointment.  While many decisions are binding on the agency, they may have limited effect and even the federal court decisions will be binding on only a limited geographic area.  The only federal judicial law that is binding on all parties wherever located, is the decisions of the U.S. Supreme Court.

The outline just given is just that - an outline.  The area of federal administrative law is complex and in some cases arcane.  It is best to work with an attorney who is familiar with both the general principles of administrative law and the specific laws, rules and regulations that affect the area of law (such as immigration) being considered.

© Copyright 2008, Arnold L. Feldman, all rights reserved.  Any authorized reproduction, or any reproduction pursuant to "fair use," must include information identifying the source including the URL where it can be found.