The INS' Administrative Appeals Office (AAO) has issued a recent opinion that stands for the proposition that the INS is not bound by its own public pronouncements. In Matter of Izumii, a case involving the EB-5 Immigrant Investor Pilot Program, the AAO stated that a petitioner has no right to rely on an INS Office of General Counsel Opinion:

"As far as the petitioner's criticism that the Texas Service Center's decision in this case failed to mention, distinguish, or explain away the above prior decisions and OGC opinions, it is not clear why the center director would reference them at all. Neither of the above decisions had any precedential value ... OGC memoranda are merely opinions. OGC is not ad administrative body and is in the position only of being an advisor; as such, adjudicators are not bound by OGC recommendations."

Later in the opinion, the AAO again states that neither the AAO nor other INS adjudicators are bound by OGC opinions.

The lawyers for the petitioner, one of whom is actually a former INS General Counsel, also made a claim of estoppel, that is, reliance, based on the fact that the lawyer met in 1996 with the Senior INS representative in charge of immigrant investor programs and was given a model petition to use to pattern his own petitions. He was told by the INS officer that if he followed the model, his cases would be approved. The lawyer noted that the next 95 petitions he submitted using the model were approved. The AAO states, however, that the INS is not bound by the opinions of a single INS officer. The AAO further states that the petitioner did not detrimentally rely on any prior representation by an INS official (though this conclusion seems completely contradictory to the facts presented). The AAO basically says that the petitioner should have (and therefore did) know better. The only way to obtain a determination of eligibility would be to actually file the petition.

The case should make immigration lawyers and would be immigrants shudder. It is no longer unfair to say that the INS operates beyond the rule of law. The agency has a consistent pattern of not issuing regulations in key areas - see the discussion of the recent NY State Department of Transportation National Interest Waiver case earlier in this Bulletin as an example - and operates on internal, often unpublished, guidelines. Immigration lawyers are forced to rely on field memoranda and General Counsel opinions as the only source of authority in many areas including the EB-5 program discussed in this case. And now immigration lawyers are being advised that even these scraps of authority have no meaning other than to advise INS on how to act. The INS now has the green light to make up the rules as it goes along.

To say that one should simply file a petition to determine if it is appropriate is to ignore reality. First, the expenses involved with filing an immigrant petition can be considerable - lawyers' fees, fees to the business broker, moving capital into a position that satisfies the requirements of the program, etc., can add up to tens of thousands of dollars in expenses. Second, valuable time can be wasted. For example, what if an investor has a child who is going to turn 21 and will no longer be eligible for a visa? Is it fair to make a person file petitions as if they were floating trial balloons? Second, the filing of an immigrant petition can have repercussions on one's ability to qualify in certain non-immigrant visa categories. The OF-156 Nonimmigrant Visa Application specifically asks about past immigration petitions. The mere filing of a petition could negatively affect one's ability to qualify for a visitor visa, student visa, TN visa and other types of temporary visas.

As a matter of fundamental fairness, it is wrong to ask people to comply with the law if, in fact, the law is unwritten, secretive or non-binding on the administrating agency.