Gallego kicks off effort to repeal Trump green card policy Story by Rebecca Beitsch • The Hill

Senator  Ruben Gallego's Letter to GAO Requesting Legal Opinion USICS AOS Memo 5.28.26

Gallego kicks off effort to repeal Trump green card policy

Story by Rebecca Beitsch

• The Hill

The Editor asked ChatGPT to comment of Gallego's contention and ChatGPT responded:

The query: Should the new policy under PM-602-0199 qualify as a rule, a distinction that would allow it to be repealed by Congress under the Congressional Review Act (CRA).

The Response: There is a plausible argument that PM-602-0199 could qualify as a "rule" for purposes of the Congressional Review Act (CRA), but the issue is not straightforward.

Under the CRA, Congress may disapprove not only formal regulations issued through notice-and-comment rulemaking, but also many agency statements that fall within the broad definition of a "rule" in the Administrative Procedure Act (APA). The CRA's definition is generally much broader than the category of "legislative rules." As a result, agencies have occasionally had guidance documents, policy statements, and interpretive rules submitted to Congress as CRA-covered rules. The key question is not what USCIS calls the document, but what the document actually does.

Several factors support the argument that PM-602-0199 is a CRA-covered rule:

1. It announces a generally applicable policy.
   PM-602-0199 directs USCIS officers nationwide to treat adjustment of status as an extraordinary form of relief and to apply heightened discretionary scrutiny in adjudicating I-485 applications.
2. It appears intended to affect future adjudications.
   The memorandum is not merely discussing legal theory; it instructs adjudicators how to exercise discretion in pending and future cases.
3. It may have substantial practical effects.
   Although USCIS and many commentators emphasize that the memo does not formally alter statutory eligibility requirements, it arguably changes the likelihood that otherwise eligible applicants will receive favorable discretionary decisions.

On the other hand, arguments against CRA coverage include:

1. USCIS characterizes it as guidance.
   USCIS policy memoranda are generally described as internal guidance for officers and are expressly said not to create enforceable rights.
2. The memo relies on existing statutory discretion.
   USCIS would argue that INA § 245 already makes adjustment discretionary and that PM-602-0199 merely reminds officers how to exercise authority Congress already granted.
3. The agency may contend that no new legal standard was created.
   If a court or Congress viewed the memo as merely interpretive guidance rather than a substantive policy change, the CRA argument would be weaker.

The more interesting legal question may be whether PM-602-0199 is a substantive rule disguised as guidance. If it effectively establishes a new presumption against adjustment of status and requires applicants to demonstrate "extraordinary circumstances" or unusually strong equities beyond what prior practice required, challengers could argue that USCIS has effectively changed policy without notice-and-comment rulemaking. Several immigration attorneys have already identified this as a likely APA challenge.

As a practical matter, if Congress wished to use the CRA, it would first need the rule to be submitted to Congress under the CRA process. Historically, agencies have sometimes failed to submit guidance documents that arguably qualify as rules, and Congress or the Government Accountability Office has occasionally determined later that such documents were CRA-covered rules.

So the strongest legal assessment is:

PM-602-0199 is arguably a CRA-covered rule because the CRA's definition of "rule" is broader than traditional APA notice-and-comment regulations. Whether it is ultimately treated as one would depend on whether Congress, the GAO, or a reviewing court concludes that the memorandum has binding future effect rather than merely providing internal guidance.

Given the breadth of the CRA's definition, the argument that PM-602-0199 is a "rule" is stronger than the argument that it is merely an internal housekeeping memorandum.