11/14/2007

  The recent trend of Service Center to deny I-140 petitions based on the underlying labor certification application's education and experience qualification requirements as interpreted by the AAO in the "unprecedent" decisions. The interpretation of "bachelor's degree," "equivalency," and "experience" has been laid out by the AAO not in "precedent" decisions but in "unprecedent" decisions.

When there is no black law or rule or written policy for that matter, the adjudicators have to rely on certain rules and they are forced to use certain policy statement or memorandum of the higher-up officials or unprecedent decisions of the appellate bodies.

Reality is that the practical rules and policies for the adjudicators are laid out by legally non-binding opinions, statements, or memorandums. Look at what has happening with the AC 21 issues. Since regulation has not been enacted, the various complicated legal issues under this law have been adjudicated by the adjudicators in the field offices in the individual cases strictly based on legally non-binding opinions expressed by the officials in the form of letters written to the individual attorneys or statements expressed in the agencies' liaison meetings or memorandums issued to the field offices of the USCIS.

Strictly speaking, they are all legally not binding. In reality, though, they have given guidance to the field office adjudicators to resolve difficult issues in handling each individual petition and application.

The USCIS leaders confirmed that unprecedent AAO decisions should not be used as legally binding standards, but at the same time they also confirmed that it was nothing wrong for the adjudicators to consider such decisions in evaluating individual cases, especially when there are neither legally binding nor legally non-binding standards and rules which the adjudicators can look up to in order to adjudicate the individual cases.

The use of legally non-binding sources of rules have been used by the field officials because there were no written standards or rules of whether legally binding or non-binding and the field officials had to adjudicate individual cases using some kinds of standards. Just reiteration of the simple common law rule that non-precedent decision has no binding forces does not help the field adjudicators.