Secretive USCIS Agency Rejects H-1B Petitioner over Secrecy Issue

By David North on June 28, 2011

There is an appeals agency within USCIS that takes the privacy of its operations to what many regard as ridiculous lengths.

Although the Administrative Appeals Office (AAO) is a semi-judicial agency, it, unlike similar organizations spread throughout the government, issues decisions in which the decider’s name is not mentioned, nor is that of the alien, nor that of the alien’s employer nor sponsor. Nor are the attorneys in the case named, as I mentioned in an earlier blog.

It’s as if Brown v. Board of Education was described as Blank v. Blank and the fact that it was a unanimous decision was a big secret.

When AAO deals with a religious worker (R-1) case, for example, it goes so far as to hide the denomination’s name, as well as the name of the church, and its pastor, and its lawyers, and its location.

That’s how vigorously AAO guards its own privacy, and that of the litigants before it, and the lawyers who practice behind those closed doors.

But if a litigant—in this case a nameless H-1B job shop—wants to hide something from the closeted semi-court, it gets zapped.

Far be it from me to argue that an H-1B placement agency, the least attractive of the H-1B users, should be granted its wishes, but I do find it ironic that the question of secrecy could be deployed against an employer by the ultra-secretive AAO.

Here’s what happened in case WAC 09 135 50098 whose heavily redacted decision can be seen here.

The H-1B user contended that the USCIS’ California Service Center (i.e., the staff decision-making organization) had erred in not allowing the extension of an H-1B visa; it said that the worker was in fact working for the user and was not under the control of a third party. That was a key issue in the case.

The government said, show us a contract or a work order signed by the third party to prove what you are contending.

No, said that the H-1B user, “that’s confidential.” So the user lost.

As is often the case in these AAO decisions the agency’s desire for secrecy is often sabotaged by staff incompetence. Often names of key players are not redacted in the texts of the decisions as they are supposed to be; in this case we can tell that firm’s client is Kraft Foods, and that the job site is in Milwaukee, Wisconsin.

We also can tell in this case that the H-1B user did not use a lawyer to present the case, as the file is marked “self-represented.”

Maybe next time the H-1B user should hire a (nameless) lawyer.

AAO noted, by the way, that if a party before it wants to submit a confidential bit of information it can do so, and AAO will keep its lips sealed.