AAO Decisions (Unwittingly) Cast Light on Obscure Migration Problems

By David North on May 17, 2021

Despite an unusual obsession with privacy, the Administrative Appeals Office (AAO), USCIS’s in-house appeals agency, occasionally sheds light on some obscure aspects of the immigration program.

Unlike court decisions, AAO determinations routinely hide the names of the judge, all lawyers in the case, the alien appellant, any corporations involved, and even the location in the U.S. But sometimes useful information comes through despite the censorship.

Two decisions, full of redactions, published earlier this month, tell us that:

  • A U.S. employer can pay an incoming employment-based immigrant as little as $9.60 per hour; and
  • At least one Russian, with what appears to be ill-gotten gains in the millions of rubles, tried but failed to use the EB-5 program to come to the States.

Exploitative Low Wages

One of the cases dealt with just about the most obscure and little-used route to a green card: the “other worker” or “needed unskilled worker” segment of the Third Employment Based Preference.

This is a very small foreign labor program, and a tiny part of our annual inflow of legal immigrants and those adjusting status. In fact, in FY 2019 the workers and dependents accounted for 0.43 percent of the total. These are the FY 2019 totals for these workers and their dependents:

Needed unskilled workers, new arrivals   818
Needed unskilled workers, adjustments   1,504
Spouses and children, new arrivals   948
Spouses and children, adjustments   1,172
Total, workers and dependents   4,442

About two-thirds of the workers are here already, presumably working on temporary visas, and adjusting status rather than arriving, along with a smaller majority of the dependents also here in the country.

What struck me about this AAO case was the simple declaration, totally without comment from the administrative law judge, that the nameless alien, working for the nameless employer, had been granted a labor certification (admittedly a few years earlier) when he or she was paid $9.60 an hour to do the unattractive work of a poultry meat cutter; whether the worker was on the killing floor was not specified.

The judge, in a somewhat formulaic opinion, explained:

By approving the labor certification, the DOL certifies that there are insufficient U.S. workers who are able, willing, qualified, and available for the offered position and that employing a foreign national in the position will not adversely affect the wages and working conditions of domestic workers similarly employed.

Thus, the Labor Department had certified in an application filed on December 6, 2016, that, among other things, the $9.60 an hour was an appropriate wage. And apparently that decision was still valid when the judge ruled on May 3, 2021.

The paltry wage was not the reason USCIS's Texas Service Center denied the petition; it was not convinced that the employer could pay it. The judge, finding that the service center’s instructions were not very clear, remanded the case to the center with an order to clarify what the employer needed to do in this connection.

Apparently, if the employer is able to convince the center that he can afford to pay the alien $9.60 an hour, the application will be approved.

Although the “needed unskilled worker” category is an obscure one, the annual report of the National Visa Center for November 2020 showed that the waiting list for these visas (for both workers and dependents) had almost doubled in the prior 12 months, from 7,643 to 13,203.

I wrote at length about this dismal but minor part of the immigration system 10 years ago.

Financial High Jinks

Meanwhile, at the other end of the income spectrum, in an April 28, 2021, AAO decision, an AAO judge was faced with a problem that was different in at least two ways: It dealt with a wealthy would-be migrant, not a poverty-stricken one, and it was a relatively rare example of alleged fraud by an alien in the EB-5 program, where most of the fraud is imposed on aliens by U.S. residents who mis-use the aliens’ funds in various ways.

One of the rules in the EB-5 program is that the alien cannot get a family-sized set of green cards by investing in a DHS-approved, but not guaranteed, investment, unless he or she can show that the funds to be invested were secured in a legal way.

The nameless investor (apparently from Russia) had sought to invest $500,000 (now the minimum is $900,000) in a nameless regional center, the middleman entities in the EB-5 program. The USCIS office in charge of the EB-5 program had ruled that the applicant, despite various multi-million-ruble transactions, had not shown that he got the funds in a legitimate way.

The nameless Russian then appealed to AAO in an effort to over-rule the office, which goes by the initials IPO despite the fact that it is named the Immigrant Investor Program Office (which should produce IIPO). The judge did not accept the alien’s argument, pointing out that:

Additionally, the Petitioner [i.e., the Russian] did not provide any requested evidence showing how [redacted] was able to pay the Petitioner 1,082,875 RUB eighteen months after [redacted] was created with a single RUB 10,000 investment.

The once mighty ruble is now worth about 1.35 cents.