To many non-lawyers, it is unimportant which kind of government document a rule appears in. It does not matter to them if it appears in a policy statement, in an agency manual, on an agency website, etc. To them, a rule is a rule. If the government say a rule prevents or requires something and they can point to a publication, say a manual or a policy statement, then that is enough to establish it is a rule that must be complied with.
However, not all rules have the “force of law” and whether a particular rule has the “force of law” is often what separates a denial from a grant, or what separates eligibility from ineligibility.
Sometimes a technical argument about whether something is a rule that has the force of law or whether it is non-mandatory offers an applicant or petitioner, from companies to college students, a path to achieve the desired goal.
Technicalities relating to the weight of a “rule” is often useful in making a strong case.
In order to avoid the Administrative Procedure Act’s notice-and-comment rules, agencies, such as USCIS, will try to make rules (rules that require or prohibit something) in a roundabout way. They try to make rules through interpretations, through policy statements, through manuals (such as the Adjudicator’s Field Manual or the Foreign Affairs Manual), through enforcement guidelines, and through statements on their websites.
In some cases, the interpretations, policy statements, manuals, etc. do have the effect of law. However, in other cases, they should not.
Statutes and (generally) regulations have the force of law. They are binding. Statutes are made by Congress, and regulations are made by federal agencies.
Statutes are at the top of the food chain, and regulations lie beneath them. And manuals, policies, guidance, and other agency pronouncements lie beneath the regulations. While the difference between a “regulation” and other agency pronouncement is not always clear, the difference is meaningful.
Imagine for example, the following:
- statute or regulation states non-citizens are eligible to receive a certain immigration benefit when they establish that they have lived in the US for one year
- The USCIS Adjudicator’s Field Manual (AFM) states that a non-citizen is only able to receive that certain immigration benefit if they have lived in the US for one year and they have graduated from college
- You are being refused the immigration benefit only because you have not graduated from college.
In a situation like this, it is important to know whether the pronouncement in the AFM has the force of law. One would be disappointed if one thinks that such situations are rare.
Statutes and (generally) regulations have the force of law. Agency manuals (like the USCIS Adjudicator’s Field Manual or the State Department’s Foreign Affairs Manual) do not have the force of law. Other documents that do not have the force of law include policy statements, enforcement guidelines, and so on.
If an agency tries to apply a rule that does not have the force of law, hoping you do not notice, you may not be able to convince the immigration official that their interpretation of the rule is inconsistent with how the law works. However, it is useful to know you have a strong case to overturn any adverse decision that relies only on the rule, in federal court or through appellate-like tribunal, such as the USCIS Administrative Appeals Office.