USCIS Decides to Burden its Own Appeals Unit with Extra Paper

By David North on September 15, 2011

What does the Obama administration do when a quasi-independent immigration appeals board repeatedly says "no" to alien admission requests?

Well, that presents a problem, because the decision-makers are all civil servants, and perhaps union members, too. The administration really cannot fire them, and it certainly cannot tell them to start ignoring their own opinions and rubberstamp "yes" every time they see an appeal.

The specific problem relates to the USCIS's entity called the Administrative Appeals Office (AAO), which hears appeals from USCIS staff denials in a wide variety of benefit-granting cases. The specific set of cases that apparently bothers the front office most deals with denials of appeals regarding I-140 petitions, filed by employers wanting to convert temporary workers to green card holders.

In the report on the subject in the August 22 issue of Interpreter Releases, the immigration bar's trade paper, there is a reference to the rejection of an "extraordinary ability" petition, one of a fulsome set of employment-based visas available to employers.

Intrigued, I looked at the last 25 AAO decisions on this subcategory of petitions, called B-5, which can be seen here, one at a time; the decisions were made between August 4 and December 8, 2010. (The AAO routinely issues its decisions many, many months after they are made.)

What I found was that of this study group of 25, 19 of the appeals were dismissed, four were regarded as withdrawn or abandoned, and only two were sent back to USCIS for further consideration; no appeals were simply sustained.

The percentages in this subcategory are almost exactly what I found a year or so ago in an examination of a much larger group of appeals; those 250 AAO cases were drawn from five other visa categories. In that set 191 were dismissed, 43 were sent back for reconsideration, 8 were sustained (i.e., about 3 percent), and 8 others were treated in ways hard to categorize, as I reported at the time.

Getting back to the earlier question, what does the current USCIS leadership do in such a situation?

It has decided to flood those presumably hard-working AAO decision-makers with more paper – and that paper is 99 percent sure to be from pro-alien immigration lawyers.

There are limits, though; none of those lawyers are allowed to submit briefs more than 25 pages in length! See the text of the USCIS document here.

That all this extra paper will be tilted toward pro-open borders policies gets completely lost as you read the IR's ultra-bland description of the process:

USCIS has announced that a new initiative to seek stakeholder input on specific legal issues through the submission of amici curiae briefs, written statements of law or legal opinion from those who are not party to an appeal but may have a strong interest in the issue that is to be decided.

No one but immigration lawyers, all on the side of employers and alien applicants, would file such briefs. (Incidentally, Interpreter Releases wins on the correct usage of the Latin plural in this setting, calling them "amici curiae briefs" but the less literate folk at USCIS write "amicus curiae briefs"; the basic meaning of the term is "friend of the court".)

My sense is that with USCIS staff saying "yes" to the overwhelming majority of alien petitions, of all kinds, the few that get rejected – and thus appealed – are pretty feeble applications and should clearly have been rejected by staff, and the big majority of them should be turned down at the appeals stage, too.

If the leadership of USCIS reviewed some of the texts of these AAO rejections, as I have done, they would soon come to the conclusion that no amount of legal paper will aid employers when petitions are badly written in the first place, or mishandled by the employers or their lawyers on appeal. Further, many of the negative AAO decisions are based on the sheer inability of the employers to pay their workers what they promised to pay them.

But, like the "science does not matter" position of some Republican presidential candidates, the USCIS leadership is not interested in pesky facts – the USCIS leaders' position is ideologically pure – they want to make sure that all possible immigration benefits are granted to all possible alien applicants, in this specific area as well as in all others.