Not to be undone, Mitt Romney, the presumed Republican nominee, would impose "a regulatory cap" set at "zero" to limit "the rate at which agencies could impose new regulations":
[If] an agency wishes or is required by law to issue a new regulation, it must go through a budget-like process and identify offsetting cost reductions from the existing regulatory burden. While not a panacea for the problem of over-regulation, implementation of this conservative principle would go some distance toward halting the relentless growth of the regulatory state.
A form of stealth rulemaking that I simply cannot abide, it stems from a simple dependent clause -- not even a complete sentence -- embedded in an obscure immigration regulation, 8 C.F.R. § 103.2(a)(1), that dates back at least to 1994. It was first adopted by the old INS (the Immigration and Naturalization Service), and later reaffirmed by U.S. Citizenship and Immigration Services (USCIS). It provides:
Every application, petition, appeal, motion, request, or other document submitted on the form prescribed . . . shall be executed and filed in accordance with the instructions on the form, such instructions (including where an application or petition should be filed) being hereby incorporated into the particular section of the regulations in this chapter requiring its submission. (Emphasis added.)
Consider just two examples: Form I-9 (Employment Eligibility Verification) and Form I-129 (Petition for a Nonimmigrant Worker). The I-9 is a one-page form with a list of acceptable documents of identity and work permission on the flip side. The I-129 is a workhorse. Its submission is required for an alphabet soup of lettered work visa categories, including the E, H, L, O, P and Q.
USCIS has issued two sets of instructions for the I-9. One is just three pages. The other, Form M-274, the "Handbook for Employers," subtitled, "Instructions for Completing Form I-9," is a 64-page behemoth, a tome chockablock with directions that are not found in any regulation. Take for example these M-274 instructions, involving (a) the interplay of Form I-9 and the government's supplemental online database, E-Verify, and (b) verification and reverification procedures for persons granted Temporary Protected Status (TPS):
[(a)] Providing a Social Security number on Form I-9 is voluntary for all employees unless you are an employer participating in the USCIS E-Verify program, which requires an employee’s Social Security number for employment eligibility verification.
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[(b)] When DHS extends a specific TPS country designation, it sometimes issues a Federal Register notice containing a temporary blanket automatic extension of expiring Employment Authorization Documents (Forms I-766) for TPS beneficiaries from that country to allow time for USCIS to issue new Employment Authorization Documents (Forms I-766) bearing updated validity dates. The USCIS website and Federal Register will note if Employment Authorization Documents (Forms I-766) have been automatically extended for TPS beneficiaries from the particular country and to what date. The automatic extension is typically for six months, but the time period can vary. . . . You may accept an expired Employment Authorization Document (Form I-766) that has been auto-extended to complete the Form I-9, provided . . . [certain] information appears on the card as shown in the box at the top of the page.
The public reporting burden for this collection of information is estimated at 12 minutes per response including the time for reviewing the instructions and completing and submitting this form. (Emphasis added.)
The situation is just as disturbing when this wayward rule holds its sway over the instructions to Form I-129 which likewise supposedly exert regulatory force. The I-129 instructions purport to grant the Homeland Security Department and USCIS a broad range of plenary powers:
The Department of Homeland Security has the right to verify any information you submit to establish eligibility for the immigration benefit you are seeking at any time. Our legal right to verify this information is in 8 U.S.C. 1103, 1155, 1184, and 8 CFR parts 103, 204, 205, and 214. To ensure compliance with applicable laws and authorities, USCIS may verify information before or after your case has been decided.
Agency verification methods may include but are not limited to: review of public records and information; contact via written correspondence, the Internet, facsimile or other electronic transmission, or telephone; unannounced physical site inspections of residences and places of employment; and interviews. (Underlining in original; bolding added.)
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Forms can only provide general information and instructions on how to fill out the form – forms cannot impose substantive requirements that can be enforced against an applicant or petitioner. Substantive requirements must be properly adopted in a regulation. Put another way, if a petitioner or applicant is required to act in a certain way, a regulation is required to tell the petitioner or applicant to act that way. Form instructions don’t have greater legal effect than guidance, memos, policy, or manuals.
[In] any bureaucratic organization there will be two kinds of people: those who work to further the actual goals of the organization, and those who work for the organization itself. . . .The Iron Law states that in all cases, the second type of person will always gain control of the organization, and will always write the rules under which the organization functions.