The Complexity Of Immigration Law

Immigration lawyers face a minefield of laws, regulations, policies, case developments, and agency interpretations that can vary in administrating almost daily. Under the current administration, the built-in application of discretion in our U.S. immigration laws and policies is subject to ongoing shifts that have changed decades of enforcement objectives. The American Immigration Lawyers Association (AILA) offers numerous interest group, committee, and chapter discussion groups that are in constant overdrive with lawyers trying to determine the appropriate remedy or interpretation of caselaw/ policy/regulation. These ethical efforts are made to assess legal remedies and considerations related to case facts.

USCIS CROSSING INTO DEADLY AND NON-DEADLY USE OF FORCE

On September 4, 2025, the Department of Homeland Security (DHS) and U.S. Citizenship and Immigration Services (USCIS) announced that USCIS would enter a new era by expanding the "law enforcement" authority of selected new USCIS officers to be known as "special agents."¹ This new era became effective October 6, 2025. It is relevant to remember that compensation for federal law enforcement officers (LEOs) has been a critical issue in recruitment even for the U.S. Customs and Border Protection (CBP) agency.² This could be an issue as well within USCIS with this change.

For historical context, when the predecessor agency to USCIS, the Immigration and Naturalization Service (INS), ceased to exist on March 1, 2003, its functions were divided up carefully.³ USCIS was established to "enhance the security and efficiency of national immigration services by focusing exclusively on the administration of benefit applications."⁴ Immigration enforcement functions were transferred from the INS to the Bureau of Immigration and Customs Enforcement (now referred to as ICE). This separation did not mean that USCIS ignored fraud or did not enforce the law. USCIS was tasked to focus on the complexity of applying U.S. immigration law and policy to benefit applications. Arrest authority was allocated to ICE. USCIS later created the Fraud Detection and National Security Directorate (FDNS) to centralize and fund its efforts to combat fraud and maximize law enforcement and intelligence community partnerships.⁵

According to the September 2025 announcement noted above, DHS indicated that the creation of USCIS law enforcement "special agents" does not violate the Homeland Security Act by recombining organizational units with the Border of Security and Citizenship and Immigration Services divisions of DHS. Instead, this final rule "codifies" the independent authority of USCIS to investigate and enforce civil and criminal violations of the immigration laws "within the jurisdiction of USCIS."⁶

USCIS SPECIAL AGENTS

The issue with this law enforcement-focused announcement is that it turns the organization of DHS on its head under the Homeland Security Act. Immigration lawyers certainly have no issue with wanting to preserve the rule of law and deter or end fraud in immigration applications and petitions. Lawyers can lose their licenses to practice law by knowingly facilitating material misrepresentations in immigration applications. In addition, immigration forms and applications normally contain oaths such as the one below for attorneys preparing a benefit application/petition:

The USCIS law enforcement proposal removes the requirement of USCIS to refer any potential criminal activity or investigation to ICE. USCIS already issued a policy memorandum on February 28, 2025 (PM-602-0187) indicating that it will issue a notice to appear (NTA) (Form I-862) before an immigration judge for removal proceedings when fraud or misrepresentation is part of the record and the foreign national is removable, even if USCIS denies the petition or application for a ground "other than fraud." For example, an NTA may be issued even if the petitioner or applicant withdraws the petition or the approval is revoked by USCIS.⁷ In addition, any exercise of discretion applied by USCIS not to issue an NTA on a case-by-case basis in limited and compelling circumstances must be reported in the applicable USCIS systems to account for the action and reporting purposes. Certainly, this tracking of a failure to issue an NTA is a cautionary note to any USCIS adjudicator.

SO, WHAT IS THE BIG DEAL?

The exercise of arrest authority or the use of non-deadly or deadly force normally requires more extensive training. In this expansion of USCIS law enforcement authority, the DHS secretary is authorized to determine what is "substantially equivalent" to law enforcement training and the definition of the term "LEO" includes a designation by the DHS secretary to incorporate those engaged in the "administration of criminal justice." This latitude blurs the line markedly between the function of USCIS to adjudicate benefits in compliance with immigration law versus to exercise arrest authority and the associated use of force.

It is important to remember that the vast majority of immigration violations that might result in removal from the U.S. are not criminal. Thus, applicants for a visa benefit are not subject to jail, but the penalty for denial may be removal from the U.S. and detention in an immigration detention facility. Where is the line between a civil law process and the clear responsibility to provide oversight to apply a legal process and review versus hunting down a criminal to arrest who committed a serious crime?

Further, immigration concepts such as a violation of status, unlawful status, and/or maintenance of status are fraught with interpretative considerations developed/issued over decades, which vary in application among agencies. In addition, immigration regulations have built-in considerations of circumstances to allow USCIS to make a discretionary decision. Can we expect those considerations to continue under a new LEO-focused regime?

DISCRETIONARY BENEFITS

In addition, USCIS imposed a new policy effective immediately on November 27, 2025, outlined in PM-2025-26 titled "Impact of INA 212(f) on USCIS' Adjudication of Discretionary Benefits,"⁸ which broadens the use of "discretion" in benefit applications filed with the agency.

This change in the policy manual in Chapter 8 as to the "discretionary analysis" applied by USCIS in benefit adjudications allows the agency to deny certain applications/ petitions, even if the eligibility requirements are met by the applicant. These negative factors, include, but are not limited to, noncompliance with prior immigration obligations, espousal of anti-American views, or origin from a country associated with terrorism, repatriation challenges, or strained diplomatic relations. This discretionary gauntlet includes requests for extension, amendment, change of status, or adjustment of status among other types of requests for benefits filed with USCIS. Thus, immigration lawyers must now develop their own approach to reach the "litmus test" for acceptable initial evidence to file under a new vague discretionary scale that seems to be weighted heavily to a more demanding evidentiary standard.

As we know, the courts confirm that immigration law is "notoriously" complex.⁹ Part of the complexity is tied to the inherent political nature of immigration policy and laws. Reading the fine print is just the normal routine for lawyers, but the forms and petitions used for immigration benefits as well as consular applications contain additional required representations under penalty of perjury relevant to agency oversight and enforcement. Even when regulatory discretion exists, such as the ability of the spouse of a U.S. citizen to still qualify for adjustment of status to permanent residence after an overstay of their authorized period of admission in the U.S., the restrictions in place by USCIS on its current use of such discretion are unprecedented. Bottom line, the assessment of regulatory and statutory implications in immigration cases is an ongoing minefield for lawyers to provide clear and accurate guidance to clients. In some cases, the concept of "impossibility of performance" appears to apply.

Footnotes

1. New Era Dawns for USCIS as Special Agents Now Meet the Authority to Support Immigration Enforcement, U.S. Department of Homeland Security (Sept. 4, 2025), https://www.dhs.gov/news/2025/09/04/new-era-dawns-uscis-special-agents-now-meet-authority-support-immigration; see also 90 Fed. Reg. 42797 (Sept. 5, 2025).
2. See 6(c) and Law Enforcement Officers Retirement Benefits for CBP Officers, AFGE, https://www.afge.org/leaders-activists/steering-committees/law-enforcement-committee/6c-and-law-enforcement-officers-retirement-benefits-for-cbp-officers/; see also LEO Special Retirement Coverage, U.S. Customs and Border Protection (July 2, 2024), https://www.cbp.gov/employee-resources/retirement/leo-ecbpo/leo-special-retirement-coverage.
3. See Our History, U.S. Citizenship and Immigration Services, https://www.uscis.gov/ about-us/our-history; see also 6 USC §§251 and 271; see also the Homeland Security Act of 2002 (HSA), Public Law 107-296, 116 stat. 2135 (2002). On June 5, 2003, DHS Secretary Tom Ridge issued DHS Delegation Number: 0150.1,10 "Delegation to The Bureau of Citizenship and Immigration Services, (Delegation)" in which he delegated the following power to the agency now known as USCIS: Authority to investigate alleged civil and criminal violations of the immigration laws, including but not limited to alleged fraud with respect to applications or determinations within the [USCIS] and make recommendations for prosecutions, or other appropriate action when deemed advisable. (Delegation §II-I; emphasis and underlining added).
4. Id.
5. See Fraud Detection and National Security Directorate, U.S. Citizenship and Immigration Services, https://www.uscis.gov/about-us/organization/directorates-and-program-offices/fraud-detection-and-national-security-directorate; see also Ruth Ellen Wasem, Immigration Fraud: Policies, Investigations, and Issues, Congressional Research Service (April 3, 2008), https://www.everycrsreport.com/files/20080403_ RL34007_7a6deaa0c4195d6f4a73a12cb17449cf37d4fc26.pdf.
6. U.S. Department of Homeland Security, supra note 1.
7. See Policy Memorandum: Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens, U.S. Citizenship and Immigration Services, PM-602-0187 (Feb. 28, 2025), https://www.uscis.gov/sites/default/files/document/policy-alerts/NTA_Policy_FINAL_2.28.25_FINAL.pdf.
8. See Policy Alert, U.S. Citizenship and Immigration Services (Nov. 27, 2025), https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20251127-Discretion.pdf.
9. See Brief of Immigration Representatives and Organizations as Amici Curiae in Support of Respondent in U.S. v. Evelyn Sineneng-Smith, 590 U.S. 371 (2020), p. 16, 19 ("The Federal Reporter is replete with expressions of frustration by sitting federal judges who have noted the 'Byzantine'"), https://www.supremecourt.gov/DocketPDF/19/19-67/129612/20200122183314835_19-67bsacImmigrationRepresentativesAndOrganizations.pdf; see also Carranza v. I.N.S., 277 F.3d 65, 68 (1st Cir. 2002), ("maze of immigration laws,"); see also J.E.F.M.v.Lynch,837 F.3d 1026, 1040 (9th Cir. 2016) (McKeown, J., concurring), which have "aptly been compared to the labyrinth of ancient Crete"; see also Sang Seup Shin v. I.N.S., 750 F.2d 122, 130 (D.C. Cir. 1984) (Starr, J., dissenting).

Originally published by Texas Bar Journal.

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