I have been working with some other IV members on the AC21 action plan which has been going great. Though the goal of the campaign presently is to get USCIS to follow their own AC21 guidelines, I feel we need to look at a permanent solution - USCIS regulation published in the Federal Register .

During the course of discussion, I discovered several members were under the impression that Yates Memo was some how AC21 regulation binding on USCIS, which unfortunately isn't the case.

Mathew Oh of Immigration-law.com has this to say on Yates (and Aytes) memos - "The memorandums and AFM are neither rules nor laws and have no legally binding force" (10/23/2008: Increasing Customer Reports of Denial of AC-21 Ported I-485 Applications Without NOID by USCIS Upon Petitioner's Withdrawal of Approved I-140 Petitions).

This should pop any unreasonable expectations we have had about these much celebrated Memos. To use an analogy it's the equivalent of 'Letters from Santa' promising goodies to kids if they are 'good kids'. The definition of good kid is left in the hands of the elves (IOs) who might decide that you are a bad kid if you had 15% more candies ( pay hike) than last year (job). Though Santas letter advises elves not to punish the kids for having more candy, kids being kids, the letter is non-binding to the elf as well as to the Santa. If a kid decides that he/she has been good and Santa/elves haven't delivered on their promises, he/she has no option for taking legal action as the 'Letter
from Santa' is NOT a legally binding document.

As we are seeing, some of the mischievous elves haven't been following the letter and have been issuing denial of goodies, and there is no legal recourse available. We can do nothing better than plead with Santa (USCIS) to ensure that elves follow his old dusty 'Letter', hoping Santa hasn't had a memory loss. Santa definitely owes us an IOU ( legally AC21 regulations published in Federal Register).


I don't want to get into how important AC21 is important to all of us, especially while facing retrogression with no immediate relief in
sight. Some of us might have to use AC21 more than once ( may be even 3-4 times) if the conditions don't change. I am really horrified that we are basing our job changes, which can jeopardize our GC process and career on some 'Letters from Santa' due to the fear that something bad may come out of rule making, and we may loose some of the goodies
promised in the letter. Even if you aren't currently a AC21 beneficiary, you might have to if the economy continues to tank for the next few years as predicted by most economists. Even if you aren't currently eligible for AC21, the fact that it may not there when you get there should frighten you out of complacency.


We are approaching the decade of passage of AC21 Act of 2000. Why do you think they haven't made any rules for so long? Why are they reluctant to make the official rules/regulations even now? May be they
are having it so good with legally non-binding memos with no legal implications for their actions? Not having proper regulations has
given them God-like powers on the lives of Ac21 beneficiaries. The result of which we are seeing in the form of torrent of straight
denials.


Whenever there was (is) a discussion on Ac21 reform, like it happened when IV included widening of 'same and similar jobs' in the Admin
fixes campaign , it has invariably raised the apprehension that some of the benefits of the 'Leters from Santa' (Memos) may be taken away in the rule-making. The argument of 'what if they fixed 15% pay raise as the bar for Ac21 same or similar jobs' is often heard.


IMO USCIS will not fix a percentage hike in it's legally-binding regulations . Because if USCIS does that, for the first time in US history a government department will be defining how
much an employer should pay the employee - a subject totally out of USCIS juridiction. It will open a pandoras box. It is politically incorrect to do so at the time 'wage depression' is such a hot button issue in Washington (courtesy Senators Durbin and Gassley). What face will these Senators have in demanding that foreign workers be paid market wages, when a US government department stops employers from doing so?


USCIS will definitely not bite more than they chew. They will be having their attorneys whett it before they make it public. So chances of such blatant stupidity, like salary bars ,making it to rule are really slim. Even if they do, we still have chances for corrective action while USCIS goes through the process of making INTERIM, INTERIM FINAL and
FINAL rules.


Unlike a USCIS internal Memo, this rule making will be public for months open to public comment. It's possible to influence USCIS to
change the rule during this period. If USCIS still goes ahead, it's possible to challenge it in a court of law (something you can't do to
a memo). IMO they are going to leave it to the discretion of the IO - as it is now!


I propose that instead of fearing that we might miss something - which is legally not gauranteed, we strive to push USCIS into AC21 rule- making, and work with USCIS to get as much of the Yates/Aytes goodies
into the rule as possible. Also, push them to regularize the process through an OMB approved Ac21 form, instead of our current demand that USCIS must ensure that Ac21 letters get to the file and are read! ( matter of fact, how can a service center director ensure it unless he/she sits in the mailing room?)

AC21 reform/Admin fixes is definitely THE Change we need!