Think Immigration: Making People “Illegal”: When Immigration Administration Becomes Immigration Policy

This blog post is part of a multi-part series from members of the AILA Rule of Law (AROL) Task Force; for more information about AROL look to Chair Jerry Grzeca’s initial blog post which is a handy guide to its purpose, priorities, and work.

Immigration lawyers spend much of their time explaining the law and its intricacies to clients. We explain eligibility requirements, filing deadlines, maintenance of status obligations, employment authorization rules, and pathways to permanent residence to help them navigate options for successful applications.

Increasingly, however, that advice comes with an uncomfortable caveat: policy changes are eliminating available options.

More frequently, immigration problems arise not because Congress changed the law, but because government agencies changed how they administer it. Through procedural changes, filing requirements, adjudication trends, processing delays, and shifting interpretations, agencies can effectively transform a compliant individual into a noncompliant one without any meaningful change to the underlying statute.

In other words, people are increasingly finding themselves "out of status" not because they violated the law, but because the rules governing how the law is administered changed while they were trying to comply.

This distinction matters. Employers, students, researchers, entrepreneurs, and families make significant decisions based on the expectation that legal requirements will remain reasonably predictable. They accept that immigration laws are complex. What becomes far more difficult is planning around administrative rules that change unexpectedly and often without meaningful transition periods.

One increasingly common example involves filing rejections. Foreign nationals may carefully prepare and timely submit an extension or change-of-status application before their current status expires, believing they have satisfied all requirements. Yet applications may be rejected weeks later because of a filing fee issue, lockbox processing concern, form edition requirement, missing field, or other procedural defect.

Unlike a request for evidence, a rejection often means the filing is treated as though it never existed. If the individual's status expires while the application is being returned, a timely filing may no longer be possible. The person who attempted to comply with the law can suddenly find themselves without the ability to preserve status—not because eligibility changed, but because of an administrative determination that the filing never entered the system.

These issues have become more significant as filing requirements become increasingly technical and unforgiving. What previously may have resulted in a request for additional information can now produce consequences far more severe than the underlying issue would suggest.

The same concern appears in the context of employment authorization. For many individuals with pending adjustment-of-status applications and other immigration benefits, employment authorization serves as the bridge that allows them to continue supporting themselves and their families while government agencies process their cases.

When adjudications are delayed or policies change regarding automatic extensions of employment authorization, individuals may lose the ability to work even though they remain eligible for the underlying benefit. Faced with expiring work authorization, many individuals are left with impossible choices: work without authorization and risk violating immigration rules, remain in the United States without income while waiting for government action, or depart the country and potentially abandon the immigration process altogether.

In these situations, the individual's conduct often has little to do with the outcome. The determining factor is whether the government processed a timely filed application quickly enough to avoid disrupting employment authorization.

Processing delays create similar challenges for many nonimmigrant workers seeking extensions of status. Federal regulations may permit continued employment for a limited period while an extension remains pending, but increasingly lengthy adjudication times can exhaust those protections before a decision is issued.

The result is that individuals who filed timely extensions and employers who complied with all legal requirements may still face work interruptions, business disruptions, and immigration uncertainty because administrative timelines no longer align with regulatory expectations.

International students face comparable uncertainty. Students often spend years carefully maintaining status, complying with enrollment requirements, reporting obligations, and employment restrictions. They reasonably expect that continued compliance will allow them to complete their education and pursue future immigration opportunities.

Yet changing interpretations, evolving enforcement priorities, and administrative actions affecting student records can dramatically alter their circumstances. A student who was compliant yesterday may suddenly find that the government's interpretation of compliance has shifted. While the underlying regulations may remain unchanged, the practical realities governing their status can become much less predictable.

The consequences extend beyond the individual student. Universities, employers, and local communities all benefit from a system that provides talented individuals with a reasonable degree of certainty regarding their ability to remain and contribute. When that certainty disappears, the impact is felt widely.

Administrative instability also appears in adjudications involving extraordinary ability and national interest waiver petitions. These categories were created to recognize substantial accomplishments and contributions that benefit the United States. Yet experienced practitioners have long observed periods in which similarly situated applicants receive dramatically different outcomes despite no significant change in the governing law.

The statutory framework may remain unchanged. The published criteria may remain unchanged. Nevertheless, applicants often encounter shifting expectations regarding what evidence is sufficient, what level of accomplishment is required, or what degree of national importance satisfies adjudicatory standards.

When outcomes become increasingly dependent upon evolving adjudicatory preferences rather than published legal standards, predictability suffers. Individuals and employers cannot effectively plan when the practical rules seem to change during the process itself.

To be clear, none of us expects every application to be approved. Government agencies have an important responsibility to prevent fraud, protect national security, and ensure that statutory eligibility requirements are satisfied. This concern is different.

The concern is that procedural changes, adjudicatory fluctuations, processing delays, and administrative obstacles increasingly function as substantive immigration policy without the transparency, predictability, or accountability ordinarily associated with formal legal change.

When a filing is rejected because of a procedural requirement that did not previously carry significant consequences, when a worker loses employment authorization because an agency cannot or will not process a renewal in time, or when applicants encounter entirely different adjudicatory expectations than similarly situated individuals a year earlier, the practical impact can be indistinguishable from a change in the law itself.

Yet no law changed.

A fair and functional immigration system does not require guaranteed outcomes. It requires transparent rules, reasonable transition periods, consistent adjudicatory standards, and meaningful protections for individuals who make good-faith efforts to comply with the law. Applicants should not lose status, work authorization, or immigration opportunities because administrative requirements become moving targets.

The rule of law depends not only on what the law says, but also on whether people can reasonably understand it, rely on it, and comply with it.

When compliance becomes dependent upon anticipating the next administrative shift rather than following established legal requirements, government administration has effectively become immigration policy. And when that happens, applicants may find themselves made "illegal" not because they broke the rules, but because the rules changed while they were trying to follow them.