The Congressional Research Service has issued a report on the continuing applicability of internal policy memoranda issued by the Immigration and Naturalization Service (INS) since the INS was transferred from the Department of Justice to the Department of Homeland Security and the agency was split into the USCIS, ICE and CPB.  Section 553 of the Administrative Procedure Act (APA) sets out the procedures an agency must follow in regards to promulgating a legislative rule, yet does not encompass interpretive rules, general statements of policy, or rules of agency organization, procedures, or practice.  In the areas which APA does not apply, publication and public access requirements under the Freedom of Information Act (FOIA) have the potential the fill the gaps.

After the Homeland Security Act of 2002 (HSA) reallocated administrative authority from the Department of Justice (DOJ) to the Department of Homeland Security, the Immigration and Nationality Act of 1952 (INA) was amended to accommodate the switch.  The secretary of Department of Homeland Security took the place of the Attorney General in the administration and enforcement of immigration laws.  The Immigration and Nationalization Service was further split into two separate functioning bodies within the Department of Homeland Security. 

According to the CRS, with the switch in ruling bodies, questions are raised whether or not former INS policy memoranda will be disregarded by the Department of Homeland Security.  Rather than disregarding the policy memoranda because of their relation to the Department of Homeland Security after the switch, it is clarified that policy memoranda are not laws, but nonlegislative rules, which are in themselves nonbinding.  Only if the policies in question were legislative rules, would they be legally binding to the department in question.

When a new department alters former rules and policies they are subject to the APA in determining how to promulgate these changes.  However, they are not bound to promulgate those policies which are nonlegislative.  The Federal Register made mention of the policies but did not explore them because they were seen as nonlegislative. 

When a new policy is not promulgated under the APA due to its internal and nonlegislative nature, an agency is usually obligated to reveal the change in Freedom of Information Act (FOIA) request The Freedom of Information Act does not encompass all policy and rule changes, however,including those policies that are (1) internal and trivial and (2) internal and sensitive to circumvention.   In this way, the Department of Homeland Security is not bound to make all changes to internal policies available to the public.