Friday February 5, 2021


by Rabindra Singh

Through implementation of a “Special Instruction” in April 2017[1], United States Citizenship and Immigration Services (USCIS) has been requiring B-1/B-2 to F-1 Change of Status (COS) applicants to file B-1/B-2 extension application(s) to “bridge the gap” until USCIS makes a final decision on the pending COS application.

For years, USCIS has denied several similar COS applications only on the ground that the applicant failed to file B-1/B-2 extension application(s) after timely filing of the COS application requesting student (F-1) status.

I challenged one such denial by USCIS by filing a complaint in the U.S. District Court for the Northern District of Illinois.[2]

The complaintin Jaradat v. Mcaleenan principally argued that the SpecialInstructions —imposing a new “binding obligation” on foreign nationals in B-1/B-2 nonimmigrant status filing a COS application requesting student (F-1) status to file B-1/B-2 extension application(s) for extending their nonimmigrant status until USCIS decides COS application— is a legislative, substantive rule. 

Complaintfurther argued that, although called a SpecialInstruction, this rule was made effective without following the notice-and-comment process required by the Administrative Procedure Act (APA). Because USCIS did not follow the required APA procedure when publishing and implementing this legislative, substantive rule, it “must be set aside.”

As the Lead Counsel[3] in Jaradat v. McAleenan, I am glad to share that after thoughtful internal deliberation, USCIS did not assert or argue that the SpecialInstruction is not a legislative, substantive rule. 

Accordingly, USCIS completely backed off from the only issue in the case—the alleged failure to file B-2 extension application(s) after filing a COS application requesting F-1 status—which resulted in the denial of the COS application. 

USCIS took no less than four (4) status hearings to confirm to Judge Honorable Gary Feinerman that it would not contend this tissue. Though USCIS did not delve into the argument that the SpecialInstruction is not a legislative, substantive rule,  it reopened the matter on its own, issued an RFE[4] and denied the “same” B-2 to F-1 COS application a second time.

USCIS’ second denial of the same COS application resulted in the filing of an amended complaint against DHS/USCIS arguing improper application of “preponderance of evidence” evidentiary standard. Ultimately, after months of back and forth, USCIS settled the matter by not only granting F-1 nonimmigrant status to the applicant but also providing an additional six (6) months’ time so that the applicant can explore suitable immigration relief, if any.


The million-dollar question is “why” USCIS did not contend that the SpecialInstruction is not a legislative, substantive rule?

The simple answer is that USCIS’ Special Instruction is a legislative, substantive rule,which wasmade effective without following the required notice-and comment process required by APA.


APA categorizes rules under two broad groups: (1) substantive, or legislative, rules; and (2) non-legislative rules. 

Substantive, or legislative, rules are those that are issued by an agency pursuant to statutory authority and which implement the statute.[5] Non-legislative rules are interpretative rules, general statements of policy, and rules of agency organization, procedure, or practice.[6] Non-legislative rules are exempt from APA’s notice-and-comment procedure. 

 The complaint successfully argued that USCIS’ Special Instruction is a legislative, substantive rule because it does not fall under either of three (3) categories—interpretative rules; general statements of policy; or rules of agency organization, procedure, or practice— specifically exempt from rulemaking process under the APA.

(a)  Special Instruction is not an Interpretative Rule

An interpretive rule simply “reminds” affected parties of existing duties.[10]  Further, interpretive rules merely 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 effect a change in existing law pursuant to authority delegated by Congress.[11] 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.[12]

The Special Instruction did not interpret anything, at least not the pertinent regulation contained at 8 C.F.R. §214.2(f)(5)(i). On the contrary, 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 COS application is adjudicated by USCIS. Additionally, this rule established a new non-discretionary 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.[13]

That is just what the binding Special Instruction does. The regulation, at 8 CFR 214.2(b)(7), though specifically prohibits a course of study in the United States while in B-1 or B-2 status, it allows a foreign national to apply for and obtain COS under section 248 of the Immigration and Nationality Act (INA) and 8 CFR part 248.  Additionally, 8 C.F.R. §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 at 8 C.F.R. §§214.2(f)(5)(i) and 214.2(b)(7) require a foreign national filing a B-1/B-2 to F-1 COS application to keep continue extending B-1/B-2 nonimmigrant status by filing separate extension application(s) until adjudication of the pending COS application. 

Prior to publication of Special Instruction, USCIS had never required such applicants to continue extending B-2 nonimmigrant status by filing bridge B-1/B-2 extension application(s). Because Special Instruction effect 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 as an “interpretive” rule. 

(b)   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.[14]

Special Instruction is binding on its face because it specifically mandates the foreign nationals to maintain their B-1/B-2 status by filing separate extension application(s) while their F-1 COS remains pending with USCIS.  Furthermore, the fact that USCIS adjudicators have applied this Special Instruction in a non-discretionary manner to deny B-1/B-2 to F-1 COS applications proves that they are binding not discretionary. 

(c)   Special Instruction is not a Rule of Agency Organization, Procedure, or Practice

Finally, the complaint contended that 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.”[15] 

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 COS application requesting F-1 status gets adjudicated by filing separate B-2 extension application(s). It is, thus, a substantive, legislative rule not a rule of agency organization, procedure, or practice.


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.[18]  

Failure to comply with the APA’s notice-and-comment procedures renders a “legislative” or “substantive” rule invalid.[19]

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 the period for public comment, the complaint agued that it[20] must be declared unlawful and set aside. 


The deliberate decision by USCIS not to confront the core issue— whether or not the SpecialInstruction[21]is a legislative, substantive rule— raised by the complaint in Jaradat v. Mcaleenan 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 the legislative, substantive rule labelled as Special Instruction otherwise it will continue to breed litigation(s) in the future. 

Until USCIS sets aside the Special Instruction or takes formal steps under 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.

[1] First published by USCIS on or around April 5, 2017. Available at:

[2] See Jaradat v. McAleenan et al, 1:19-cv-05320.

[3] While employed with Immigration Attorneys, LLP until February 2020. Later, substituted by Sara J. Bartos of Immigration Attorneys, LLP in March 2020.

[4] Raising previously adjudicated issues which were not raised on first denial.

[5] Attorney General’s Manual on the Administrative Procedure Act (1947)

[6] 5 U.S.C. § 553(b)(A) 

[7] See Chrysler Corp. v. Brown, 441 U.S. 281, 302 (1979).

[8] See Miller v. Cal. Speedway Corp., 536 F.3d 1020 (9th Cir. 2008). 

 [9] with applicable USCIS filing fee

[10] See Citizens to Save Spencer City. v. United States EPA, 195 U.S. App. D.C. 30, 600 F.2d 844 (1979).

[11] See Miller v. Cal. Speedway Corp., 536 F.3d 1020 (9th Cir. 2008).

[12] See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). 

[13] See Children’s Hosp. of the King’s Daughters, Inc. v. Azar, 896 F.3d 615, 620 (4th Cir. 2018).

[14] See Cement Kiln Recycling Coal. v. EPA, 377 U.S. App. D.C. 234, 493 F.3d 207 (2007). 

[15] See Inova Alexandria Hosp. v. Shalala, 244 F.3d 342, 349 (4th Cir. 2001) (quotation marks omitted).

[16] See Elec. Privacy Info. Ctr. v. DHS, 653 F.3d 1, 6 (D.C. Cir. 2011). 

[17] unless persons subject thereto are named and either personally served or otherwise have actual notice thereof in accordance with law.

[18] See Lincoln v. Vigil, 508 U.S. 182, 196 (1993). 

[19] See Chen Zhou Chai v. Carroll, 48 F.3d 1331, 1341 n.9 (4th Cir. 1995) 

[20] imposing 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) application(s) for extending their B-2 nonimmigrant status until COS application is adjudicated.

[21] requiring B-1/B-2 to F-1 Change of Status (COS) applicants to file  B-1/B-2 extension application(s) in order to keep extending their nonimmigrant status

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