USCIS Is Improperly Denying Visa Change Applications
by Rabindra Singh
Through implementation of a notice in April 2017, called “Special Instructions for B-1/B-2 Visitors Who Want to Enroll in School,” U.S. Citizenship and Immigration Services has been requiring B-1/B-2 to F-1 change of status applicants to file applications to extend their B-1/B-2 nonimmigrant status, to bridge the gap between the time their B1/B2 status expiration dates and USCIS’ final decision on their pending change of status applications.
For years, USCIS has denied similar change of status applications solely on the ground that the applicant failed to file a B-1/B-2 extension application after timely filing an application to change to F-1 student status.
In Jaradat v. Mcaleenan, I challenged one such denial in the U.S. District Court for the Northern District of Illinois. The complaint principally argued that the special instruction imposed a new binding obligation on foreign nationals in B-1/B-2 nonimmigrant status who file applications to change to F-1 student status, and that as such created a legislative, substantive rule.
The complaint further argued that the rule was made effective without following the notice-and-comment process required by the Administrative Procedure Act, and that, because USCIS did not follow the required APA procedure when publishing and implementing the rule, it must be set aside.
USCIS did not assert that the special instruction was not a legislative, substantive rule.
In addition, USCIS backed off of the issue which had resulted in the denial of the plaintiff’s change of status application — the alleged failure to file a B-2 extension application after filing a the application to change to F-1 student status.
After four status hearings, USCIS confirmed that it would not contend this issue.
Although in federal district court USCIS did not address the plaintiff’s argument that the special instruction is a legislative, substantive rule, it reopened the matter on its own by issuing a request for evidence and denying the plaintiff’s B-2 to F-1 change of status application a second time.
In response to USCIS’ second denial of the application, the plaintiff filed an amended complaint against the U.S. Department of Homeland Security and USCIS, arguing improper application of a preponderance of the evidence standard.
Ultimately, after months of back and forth, USCIS settled the matter, not only granting the plaintiff’s request to change to F-1 nonimmigrant status but also adding six months to the term of the status to allow the plaintiff time to determine whether other immigration relief was available.
Special Instruction or Legislative, Substantive Rule
The million dollar question is why USCIS failed to address the plaintiff’s assertion that the special instruction is a legislative, substantive rule. The simple answer is that it is, and that it was implemented without following the required notice-and-comment process required by the APA.
APA categorizes rules under two broad groups: (1) substantive, or legislative, rules; and (2) nonlegislative rules.
Substantive, legislative rules are those that are issued by an agency pursuant to statutory authority and which implement a statute.
Nonlegislative rules are interpretative rules, general statements of policy and rules pertaining to an agency’s organization, procedure or practice. Nonlegislative rules are exempt from APA’s notice-and-comment procedures.
The USCIS special instruction is a substantive, legislative rule because it does not fall within one of the three categories — interpretative rules, general statements of policy, or rules of agency organization, procedure or practice — specifically exempt from rulemaking process under the APA.
Special Instruction Is Not an Interpretative Rule
An interpretive rule simply reminds affected parties of existing duties.
Further, interpretive rules explain, but do not add to, the substantive law that already exists in the form of a statute or legislative rule, whereas legislative rules create rights, impose obligations or affect a change in existing law pursuant to authority delegated by Congress.
Furthermore, an interpretive rule merely represents the agency’s reading of statutes and rules rather than an attempt to make new law or modify existing law.
The special instruction did not interpret anything, at least not the pertinent regulation contained in Title 8 of the Code of Federal Regulations Section 214.2(f)(5)(i).
On the contrary, the special instruction imposed a new binding obligation on foreign nationals in B-1/B-2 status to file bridge B-1/B-2 extension applications until the change of status application is adjudicated by USCIS.
Additionally, this rule established a new nondiscretionary rule of adjudication for USCIS adjudicating officers.
A rule is legislative and not interpretive if it “effects a substantive change in existing law or policy.” That is just what the binding special instruction does.
The regulation, at Title 8 of the Code of Federal Regulations Section 214.2(b)(7), though specifically prohibits a course of study in the U.S. while in B-1 or B-2 status, it allows a foreign national to apply for and obtain change of status under Section 248 of the Immigration and Nationality Act and Title 8 of the Code of Federal Regulations, Part 248.
Additionally, Section 214.2(f)(5)(i) provides that an F-1 student may be admitted for a period up to 30 days before the indicated report date or program start date listed on Form I-20.
As such, neither INA nor pertinent regulations contained in Sections 214.2(f)(5)(i) and 214.2(b)(7) require a foreign national filing a B-1/B-2 to F-1 change of status application to keep continue extending B-1/B-2 nonimmigrant status by filing separate extension applications until adjudication of the pending change of status application.
Prior to publication of the special instruction, USCIS had never required such applicants to continue extending their B-2 nonimmigrant status by filing bridge B-1/B-2 extension applications.
Because the special instruction affects a substantive change in existing regulations and also the long-held policy previously followed by USCIS, the complaint argued that it should be considered a legislative, substantive rule, not an interpretive rule.
Special Instruction Is not a General Statement of Policy
The question of whether an agency document is a legislative rule that is subject to notice-and-comment procedure — rather than a policy statement that is not — turns on whether the agency action binds private parties or the agency itself with the force of law.
An agency pronouncement will be considered binding as a practical matter if it either (1) appears on its face to be binding, or (2) is applied by the agency in a way that indicates it is binding.
The special instruction is binding on its face because it specifically mandates foreign nationals to maintain their B-1/B-2 status by filing separate extension applications while their F-1 change of status application remains pending with USCIS.
Furthermore, the fact that USCIS adjudicators have applied this special instruction in a nondiscretionary manner to deny B-1/B-2 to F-1 change of status applications proves that it is binding, not discretionary.
Special Instruction is not a Rule of Agency Organization, Procedure, or Practice
Finally, the complaint contended that the special instruction is not a rule of agency organization, procedure or practice. This category includes rules that do not alter the rights or interests of parties, but merely “prescribe the manner in which the parties present themselves or their viewpoints to the agency.”
In the instant case, the special instruction “altered both rights and interests of foreign nationals by imposing upon them an obligation to maintain B-1/B-2 status until a change of status application requesting F-1 status gets adjudicated by filing separate B-2 extension applications. It is, thus, a substantive, legislative rule not a rule of agency organization, procedure or practice.
Legislative, Substantive Rule Made Effective Without Following APA Notice and Comment Process
The APA’s notice-and-comment requirements apply only to so-called legislative or substantive rules; they do not apply to interpretative rules, general statements of policy, or rules of agency organization, procedure or practice.
Failure to comply with the APA’s notice-and-comment procedures renders a legislative or substantive rule invalid.
Because the special instruction is a substantive, legislative rule, USCIS was required to abide by the APA’s notice-and comment requirements.
Since USCIS did not publish the special instruction as a proposed rule in the Federal Register, did not provide interested persons an opportunity to participate in the rule making, and did not consider and respond to comments received during a period for public comment, the complaint argued that it must be declared unlawful and set aside.
The deliberate decision by USCIS not to confront the core issue raised by the complaint in Jaradat v. Mcaleenan — whether or not the special instruction is a legislative, substantive rule — confirms that the April 2017 special instruction is not a special instruction but a substantive, legislative rule that was implemented without following the required APA’s notice-and-comment process.
USCIS, on its own, should set aside this legislative, substantive rule labelled as a special instruction otherwise it will continue to breed litigation in the future.
Until USCIS sets aside the special instruction or takes formal steps under the APA to formally make it a rule, practitioners should consider challenging such B-1/B-2 to F-1 denials by filing a motion to reconsider with USCIS or by filing a complaint in a U.S. district court.
It is unreasonable and unlawful for USCIS to impose obligations, and affect the rights and interests of foreign nationals in B-1/B-2 status requesting student (F-1) status in an arbitrary and capricious manner by characterizing a substantive, legislative rule as a special instruction.
This article originally appeared on https://www.law360.com/immigration/articles/1352492/uscis-is-improperly-denying-visa-change-applications?nl_pk=c550c801-8acf-43f7-93e8-d90b583cf9d0&utm_source=newsletter&utm_medium=email&utm_campaign=immigration. Reprinted with permission.
Disclosure: The author was counsel for the plaintiff in Jaradat v. McAleenan, the case discussed in this article.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
 First published by USCIS on or around April 5, 2017. Available at:http://ls.aaitschool.com/wp-content/uploads/2017/04/Special-Instructions-for-B-1_B-2-Visitors-Who-Want-to-Change-to-F-1-visa.pdf
 See Jaradat v. McAleenan et al, 1:19-cv-05320.
 I was the attorney of record through February 2020, while at Immigration Attorneys LLP. In March 2020, I left the firm and Sara J. Bartos of Immigration Attorneys LLP became counsel of record. The case is no longer open.
 Raising previously adjudicated issues which were not raised on first denial.
 Attorney General’s Manual on the Administrative Procedure Act(1947)
 5 U.S.C. § 553(b)(A)
 See Citizens to Save Spencer City. v. United States EPA, 195 U.S. App. D.C. 30, 600 F.2d 844 (1979).
 See Miller v. Cal. Speedway Corp., 536 F.3d 1020 (9th Cir. 2008).
 See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008).
 See Children’s Hosp. of the King’s Daughters, Inc. v. Azar, 896 F.3d 615, 620 (4th Cir. 2018).
 See Cement Kiln Recycling Coal. v. EPA, 377 U.S. App. D.C. 234, 493 F.3d 207 (2007).
 See Inova Alexandria Hosp. v. Shalala, 244 F.3d 342, 349 (4th Cir. 2001) (quotation marks omitted).
 See Lincoln v. Vigil, 508 U.S. 182, 196 (1993).
 See Chen Zhou Chai v. Carroll, 48 F.3d 1331, 1341 n.9 (4th Cir. 1995)
 This imposed a new binding obligation on foreign nationals in B-1/B-2 nonimmigrant status requesting student — F-1 — status to file separate, and possibly multiple applications for extending their B-2 nonimmigrant status until change of status application is adjudicated.
 This required B-1/B-2 to F-1 change of status applicants to file B-1/B-2 extension applications in order to keep extending their nonimmigrant status.