While others wrestle with the question of whether immigrants are more likely to commit crimes than natives — the evidence is mixed — we can safely say that some groups of migrants, just like some groups of natives, are much more likely to have criminal records than others.
We at CIS have just done a sample study of rejected immigration applications in which we found one group with no criminal records at all, and in another group exactly half of the denied applicants had such records. The study dealt, because of data availability, with a sample only of rejected applicants, but the findings were revealing.
At the upper level of respectability, those seeking EB-1 green cards as Priority Workers, our sample found no criminal records. At the other end of the spectrum, dealing with crime victims holding U visas and seeking green cards, we found that fully 50 percent of the sample had criminal records. It should be remembered that these proportions were among those denied benefits, not the whole population.
This is a useful concept in terms of policy because the government can — if it wants to — scrutinize the applications of a category of migrants with more care if that category is producing a substantially larger percentage of criminals than other categories.
The laws governing the admission of immigrants, and the issuance of nonimmigrant visas, are, inevitably, specialized and to some extent, class-based. Let’s take two extremes: NATO diplomats (which were outside of our study) and those covered by Temporary Protected Status (TPS), one of our studied populations.
The NATO visas go to officials pre-screened by the governments of our NATO allies, all high-income countries, and include Norwegian admirals and Belgian diplomats, populations at low risk of criminal behavior.
Temporary Protected Status (TPS) benefits, including work permits, usually go to a population screened in a very different way; they are from Third World nations, their incomes are low, and they get the benefits because most of them were in illegal status here in the U.S. at a time of some kind of distress in the home country. Their circumstances are much more likely to produce criminal records, albeit in a minority of cases, than those with NATO credentials.
With those thoughts in mind, we decided to tap an obscure data source to examine the extent to which five categories of migrants have been found to have criminal records. Unfortunately for this research, the records of most case-by-case decision-making are kept secret by the government, but there is an exception. These are instances in which applicants have been found, at the staff level, to be ineligible for the benefits sought, and the applicants have appealed these decisions to a semi-judicial arm of USCIS, the Administrative Appeals Office (AAO).
Large numbers of case histories are reviewed by the AAO judges, in a paper process, and then large numbers of decisions are issued about the appropriateness of the staff work. If the applicant has a criminal record, it (usually) shows up in the text of the decisions; most applications are rejected for a variety of reasons other than a criminal record.
There are dozens of groups of AAO decisions, all grouped by a specific kind of application; and though these decisions are marred by frequent redactions, the question of a criminal record — fortunately — is not wiped out by the AAO censors. These are the non-precedent, i.e., run-of-the-mill decisions, not the handful of precedent decisions.
Our definition of a criminal record is a narrow one, and does not include violations of the immigration laws. What we found in our study were three levels: A) no mention of a criminal record; B) a mention of one, but it had not caused the petition’s denial; and C) a criminal record that had caused a denial.
We studied five quite different categories of applications, two from elite groups and three from non-elite groups, with the AAO codes in parentheses:
- EB-1, Priority Workers (B-2);
- EB-5, Immigrant Investors (by definition millionaires), (B-7);
- TPS, those seeking Temporary Protected Status (M-1);
- U, green card seekers (already in nonimmigrant status, D-14); and
- U, nonimmigrant status as crime victims (A-6).
The benefit sought in the first, second, and fourth categories, is a green card; in the others it is a temporary legal status and that is accompanied by a work permit. The fourth population, by definition, has been in the U.S. longer than the fifth population. It is the only one of the five in which all applicants have gone through two screenings, first at the nonimmigrant level, and then at the immigrant level. U status, which is accompanied by a work permit, is granted, at first temporarily, to those who claim to be crime victims; the temporary status can later be converted to that of a green card holder.
This is what we found in a sampling of 20 recent decisions (made between October 1, 2020, and May 24, 2021) in each of the five categories; we awarded no points if there was no criminal record, in Class A cases, one point to the class B cases (a minor criminal record) and two points to class C cases (those with major criminal records):
Table 1. Proportion of Criminal Records in Rejected Applications in Five Visa Categories (from least to most points; 20 decisions in each category)
in a Range
of 0 - 40
|EB-5, Investors (B-7)||19*||0||1||2|
|U, Seekers of Nonimmigrant
|TPS Applicants (M-1)||12||2||6||14|
|U, Seekers of
Green Card Status
Source: Center for Immigration Studies calculations from AAO statistics.
* See text on the dubious sources of funds for 16 of these 20 EB-5 investors.
The policy implications are that both the TPS status and the U visas draw more people, many more, with criminal records than the other two categories; this was no surprise. What was startling was to learn that fully 80 percent of the rejected EB-5 applicants, millionaires all, either did not have access to legitimate sources of the moneys they planned to invest in the U.S., or they and/or their lawyers were incompetent at completing USCIS forms, or they did not have the imagination to borrow money for the investments, which USCIS now accepts — all blemishes on an already sullied program.
It was also distressing to learn that despite two levels of screening, at both the nonimmigrant and the immigrant levels, that fully 50 percent of those denied U-visa-based green cards, had criminal records. These findings would seem to relate to the poverty level of most of the crime victims, a group that includes many natives of Mexico.
Nevertheless, the extent of criminal records shown in the sample was worrisome enough that we decided to do an additional sample of 20 cases in each of the U categories and what we found was virtually the same in the second round as in the first. We found, in the second round, among those seeking green card status one more criminal record than seen in Table 1, and among those seeking nonimmigrant status, one fewer.
But the question remains: Why should there be so many criminal records among those seeking green cards from a crime-victim base? Particularly, why should there be more with such records than those seeking victim-based non-immigrant status? We think the answer largely is the passage of time, seeking a green card from a U-visa background comes years after securing the nonimmigrant document, years in which one might commit a crime.
This data certainly raises the question: Why reward crime victims with green cards? Yes, those attacking illegal aliens should be sent to jail, and the illegal alien victims should be given whatever benefits go to crime victims generally, but why on earth reward the victims with a road to citizenship? Currently, there is a 10,000 per year cap on green cards for victims, and a backlog of 269,000 applications for permanent resident alien status, as of January 1, 2021, mostly filed by illegal aliens. That’s a bit of information you will not find in any Biden administration pronouncements, though it is in the statistical files of USCIS.
It should be repeated that the samples in our study were not drawn from the applications generally, they were drawn from samples of decisions made against the aliens at the staff level, and then appealed to the AAO.
Numbers, Not Proportions. What we have been discussing is the proportion of appealed decisions in which a criminal record has been mentioned in an AAO decision. To round out the picture, let’s examine three variables among the categories. Some of these five populations are larger than others, the stakes seem to be higher for some groups than others, and some groups denied a benefit seem to be more likely to appeal than others.
Table 2. Variables Among Five Migration Categories
|Visa Category||Most Members
of Group Sizes
|Number of Appeals Decided in Study Period|
|EB-1, Priority Workers (B-2)||In nonimmigrant status in the U.S.||Legal ceiling is 40,000 a year||160|
|EB-5, Immigrant Investors (B-7)||Outside the U.S.||Legal ceiling is 10,000 a year||41|
|U, Seekers of Nonimmigrant Status (A-6)||In illegal status in the U.S.||50,000 applicants a year||83|
|TPS Applicants (M-1)||In illegal status in the U.S.||TPS population is an estimated 320,000||21|
|U, Seekers of Green Card Status (D-14)||In nonimmigrant status in the U.S.||Backlog of 269,000 applications||271|
Sources: For EB-1 and EB-5 in Column 3, Congressional Research Service; for U, Seekers of Nonimmigrant Status, U.S. Department of State; TPS, National Immigration Forum; U, Seekers of Green Card Status, USCIS, “Number of Service-Wide Forms Fiscal Year to Date”.
That there are relatively small numbers of TPS appeals may relate to three different factors: 1) There was not much TPS activity during this period; the Biden decisions to open up TPS for both one-time residents of Haiti and Burma happened after our study period; 2) The relative instance of appeals relates, at least some extent, to the prosperity of the category in question, and TPS people usually have low incomes; and 3) Many with TPS denied applications can look around their neighborhoods and see that there is very little enforcement of the immigration law, so why bother to appeal a negative decision?
We will discuss the prospects for the future expansion, contraction, and stability of the five programs in a future posting. Will the cleanest of the programs be set for expansion, and the least set for contraction?
Don’t bet on it.