The CIS continues to suffer setbacks to their policy of illegal rule making. Federal law requires administrative agencies to go through formal "notice and comment" rule making procedures. This is a lengthy process, designed to ensure that agencies do not overstep their authority and that the rules they promulgate are lawful and reasonably easy to understand. Because this process involves careful thought and preparation, the CIS avoids it whenever possible.

Recently, however, the courts have shown a willingness to prohibit this kind of illegal rulemaking by the CIS. Both the federal judiciary and the Board of Immigration Appeals have found that the CIS has exceeded its lawful authority in this regard.

In Love Korean Church v. Chertoff, the Ninth Circuit Court of Appeals found that the CIS had improperly added requirements to the definition of "religious worker" - requirements not found in the statute or regulations. The Ninth Circuit held that the CIS could not do this and ordered the plaintiff's petition approved.

Not long after, in Kazarian v. USCIS, the Ninth Circuit again found that the CIS had exceeded its authority and engaged in unlawful rulemaking. The Kazarian case involved an EB1 extraordinary ability petition. The CIS denied the case on the basis that the plaintiff's publications were not sufficiently distinguished, nor was his review of the work of another sufficiently important enough to satisfy the regulatory criteria.

The Ninth Circuit found that the CIS must follow the plain language of the regulations unless and until they go through public notice and comment rulemaking to change them. They held that a publication in a journal with international meets the regulatory criteria and no proof is needed to show that the particular publication was unusual or itself outstanding. While the CIS may take these kinds of things into account when making an overall determination of extraordinary ability, they may not dismiss individual items of evidence that meet the regulatory criteria.

Finally, in Matter of Alania-Martin, an administrative precedent decision, the Board of Immigration Appeals knocked the legs out from under the CIS interpretation that adjustment of status applications under Section 245(i) who have accumulated more than 180 days of unauthorized employment are ineligible for adjustment of status. The Board found that the CIS was attempting to read into the statute a requirement that simply didn't exist and that this constituted unlawful rulemaking.

Hopefully, these reverses will cause someone at CIS headquarters to stop and think about re-evaluating their out of control adjudicators. At some point, CIS headquarters is going to have to bring their rogue adjudicators under control or continue to suffer these kinds of reverses in court.