We thought that the following post on the American Immigration Lawyer’s Association (”AILA”) website, entitled  “Regulations, Rumors and the Unified Agenda”, was educational from the standpoint of how regulations are formulated and ultimately enacted by U.S. government agencies. As we move into an election year where it is likely that there will be increased discussion about immigration reform, it will be important to understand how the regulatory and legislative process works in practice. 

The AILA Post States: 

“From time to time, a rumor will emerge that a particular regulation “has been” or “is about to be” published by a government agency-usually DHS or one of its components. These rumors often spread in on-line chats in which individual clients participate. The rumors are usually bolstered by the presence of a link to a government website where a summary of, and timetable for, the purported regulation can be found. The client then contacts the attorney, demanding to know why the attorney has not notified him or her of this regulation. The attorney searches InfoNet and cannot find this regulation.

Has InfoNet fallen down on the job? No. What has happened is that yet another group of clients have stumbled upon something called the Unified Regulatory Agenda.

The Unified Agenda is issued semi-annually by the Executive Branch of the government, in compliance with the Regulatory Flexibility Act. It is, in essence, each agency’s list of what regulations are, or might be, under development somewhere within the agency. Each time the Agenda is published, the agency inserts an estimate of when it thinks the next action on the regulation will take place (except for those regulations listed under “Long Term”-for those, usually only a history of actions on the regulation is provided).

How predictive the list is depends largely on the agency in question. For example, AILA’s observation has been that the Department of Labor usually does bring forward the regulations that it lists, and generally does so within a couple of months of the projected date. By contrast, we have observed that neither the projected dates nor even the prospect of the regulation ever seeing the light of day can be relied upon for regulations listed by USCIS. Some of the regulations on that agency’s list have been there since its inception in 2003 (and even before that, on INS’ list) without any discernable movement. Yet, twice a year, the regulations are listed, usually with a date in the very near future listed.

It is discovery of these listings that gives rise to the periodic spate of rumors.

The most recent such rumor is that “a regulation eliminating concurrent filing of I-140s and I-485s is imminent.” Indeed, there is a regulation titled “Halting Concurrent Filing of Form I-140 Immigrant Petition With a Form I-485 Application” listed on USCIS’ Unified Agenda, complete with a summary that indicates the agency is considering disallowing such filing and a timetable indicating publication of a proposed rule in June 2008.

So, is such a regulation coming? Well, consider these factors:

(1) This item has been listed on USCIS’ Unified Agenda since December 2006. At that time, the projected publication date was March 2007.

(2) Another item on the current Agenda is titled “Allowing for the Filing of Form I-140 Visa Petition Concurrently With a Form I-485 Application in Certain Circumstances.” It is listed under long-term actions, indicating that also on USCIS’ plate is the finalization of this currently interim regulation. Yes, the exact opposite action from the other one is also listed on the same Agenda.

(3) Before any USCIS regulation is published in the Federal Register, it first must be cleared by multiple units within USCIS, then by other immigration-related components of DHS, then by the Secretary’s office. Once it clears all those hurdles, it is then sent to the OMB, which has 90 days to review the regulation (and usually takes the full 90 days, unless the regulation is on a fast track). OMB maintains a website showing what items it has under review and what it has cleared within the past 30 days. This regulation has yet to appear on OMB’s website.

This is not to say that this rulemaking will never happen. Obviously, it has some supporters within the agency or it would not be on the Unified Agenda. But is it imminent? It certainly doesn’t appear so.

If you want to follow the Unified Agenda, it can be found on the Regulations.gov website. Also, previous editions can be found on AILA InfoNet by using Advanced Search and checking the box for Regulatory Agendas under Filters. (Note that the Agenda used to be published twice a year in the Federal Register. It is now published in its entirety only in November or December, but is updated on the Regulations.gov website in the spring as well.)”