How Does USCIS' Appeals Body Handle Disputes about Religious Visas?

By David North on February 28, 2010

What happens when an obscure USCIS appellate body handles disputes about visas for religious workers?

In my review of the 62 decisions made in 2009 made by the Administrative Appeals Office (AAO) the answer appears to be – carefully and narrowly.

Bearing in mind the definitions I am using discussed below, it looks like 32 of the decisions went against the churches and/or religious workers, and 30 were more or less in their favor.

The AAO takes care of some of the appeals of negative decisions on various applications handed down by the regional and district offices of USCIS; others go to the Justice Department's Board of Immigration Appeals. Among those handled by AAO, and noted separately on its website are those related to applications for temporary and permanent petitions for religious workers. There does not appear to be any mechanism in which a positive decision (to grant the petition) can be, or is, appealed by those opposing it.

As I noted in an earlier blog, three different government agencies produced highly critical reports on the religious workers immigration programs, and in the two of them that used statistics the fraud rate was shown at 30 to 32 percent. There were multitudinous reports of non-church entities getting green cards for their friends, of non-qualified people receiving approvals, and of very limited site visits by the government – then – to places claiming to be churches.

Faced by these reports, USCIS tightened its rules, and some of the appeals from these new and stricter policies showed up among the decisions made by AAO in 2009.

If an appeal was rejected, as 32 were, I counted it as negative to the church and/or its would-be worker, even though, at some later date, a court might overturn the AAO decision. On the other hand if the church and its worker's case was kept alive, I counted it as a win for that side.

The trouble with AAO statistics, as opposed to clear-cut baseball numbers, is that many of the apparent pro-church decisions were remands to the USCIS officials to think through the case again, and in others, or so it seemed to me, to produce better denial documents. So take the 32-30 score with a couple of grains of salt; the losses by the churches were probably, in the end, more numerous.

There were at least half a dozen cases (among the 32) in which AAO had remanded a decision to USCIS officials, those officials had examined the case again, and had again rejected it, and then the AAO had confirmed the second rejection.

I happen to like to read court decisions, so I relished this opportunity to see how a semi-judicial body, new to me, handled its challenges. These were my observations about the 62 cases I reviewed.

First, there is a lot of ineptitude among those applying for immigrant visas for religious workers. (Only five of the 62 cases dealt with nonimmigrant applications; the rest were for immigrant status for the religious workers.)

Several cases were decided against the church because – and this is a fundamental error in this field – the appellant was the worker, not the church; only churches can apply in this program, and only churches can appeal. In at least one case the person arguing the case for a church did not qualify, in AAO's eyes, as a lawyer; he had identified himself as an "advate", a statement jumped upon with a "[sic]" by the AAO. In other instances, appeals were filed late, briefs were not filed at all, and clear-cut AAO instructions were ignored by the losing churches.

To the extent that cases could be decided on obvious grounds, like timing of the appeal, the people reviewing the paper in the AAO could write very short opinions; in a few cases, where evidence needed to be examined, more full-bodied decisions resulted. There was no indication that any oral arguments were heard in these 62 cases.

Secondly, several of the losing appeals were filed by what might be called fringe religious entities; there was the International Center for Integral Theotherapy, for example. Then there was the representative of the Orthodox Church of Italy, who said of himself: "I am a Bishop of Palermo, Italy and the Bishop of Findlay, Ohio and American Dependencies. St. Michael's Mission Orthodox Church falls under my jurisdiction and as such I have [the] power and authority to sign this Petition."

AAO said that he was, in effect, too distant from the action to be regarded as an employer; and would-be employers have to sign the applications.

Finally, there is an odd sense of extreme privacy involved in the reports of these cases. Each copy on the internet is marked with a stamp saying: "identifying data deleted to prevent clearly unwarranted invasion of personal privacy."

You might think that someone, in this semi-judicial organization, might have simply said "deleted to prevent invasions of privacy", but the privacy concerns of this government agency are so severe that they throw in: "clearly", "unwarranted", and "personal."

All the names of both employers and would-be employees are blocked out on the headings of these decisions that appear on the internet. But then the human factor intervenes; in some of the texts of the decisions all names of persons and entities are blocked out, but in others, such as those involving the Center for Integral Theotherapy, and the Bishop's wonderful title, the details are left in place by negligent clerks.

I am puzzled by the lack of names; if you file for bankruptcy, the petition shows your name, your home address, and if there is one, the name of your spouse. If you sue someone on a civil matter, your name and that of your adversary, are both on the record. In immigration proceedings, in say H-1B and many other nonimmigrant worker cases, the name of the employer is there for all to see.

My sense is that any entity wanting government permission to skirt the American labor market, even if it is a church, should identify itself. Is using a public law to create a special benefit for an entity not a public activity?