USCIS Quietly and Slowly Closed a Small Loophole in the Immigration System

By David North on July 3, 2012

This blog often criticizes USCIS for bending over backward to accommodate tiny to small classes of would-be migrants to the United States, such as the abused step-parents of U.S. citizens and "investors" in the Mariana Islands who were considered both rich enough to be investors, but too poor to pay USCIS fees, as can be seen here and here.

Today's account is different. It tells how the agency decided, apparently in 2008, to close a small loophole in the immigration system, and how it has successfully persisted in that particular narrow struggle in the years that followed.

The people trying to beat the system had an understandable motive. They had been, for the most part, lesser employees of the embassies of poverty-stricken nations, such as Bangladesh and Zimbabwe, and wanted to convert to green card status under an obscure 1957 statute rather than return to their home countries. If you had been a clerk in the Zimbabwean Embassy in Washington, and your job ended, would you want to return to that desperate nation? Probably not.

The problem for these would-be migrants was two-fold; most did not do diplomatic or semi-diplomatic work, and thus did not qualify under the 1957 law. Others, who were full-fledged diplomats could not prove that there were "compelling reasons that would prevent their return", another provision in that statute.

The law might be used later this year, quite appropriately, if a diplomat from Syria, for example, decides to defect. Presumably he would do so as a protest to what his government is doing to his people, and it would be foolish of him — a defector — to return to Syria, and it would be even more foolish of the United States to send him back to Syria to his probable death. Hence the 1957 law.

All of the applicants USCIS turned down, however, were either not fully qualified diplomats or were not from obviously abusive nations, like Syria. Poor ones, but not abusive ones.

We have complained in the past that USCIS has too often rubber-stamped every application in sight. In this case it did the reverse, and its Administrative Appeals Office (AAO) simply denied (or did not approve) every appeal made to it involving these embassy workers in the years 2010 (34) and 2011 (17), and made a similar sweep of negative decisions in our 20 percent sample of the cases decided in 2009, when it handled 138 of them.

This posture of USCIS, to my knowledge, has not been publicized by that agency, or reported in the press. I stumbled on it while looking for something else in the published decisions of AAO. (See its file A-3 for the decisions dealing with the embassy workers.)

The flurry of negative decisions for the embassy workers is confirmed by the admissions data routinely published by the DHS in Table 7 of the 2010 Yearbook of Immigration Statistics. In the classification that includes both the 1957 act admissions and those of "a foreign government official who is an immediate relative of a U.S. citizen", there were one or two admissions in 2009 and again in 2010. (One of the statistical quirks of DHS is that it publishes data on three or zero admissions, but it draws a cloak of secrecy if there are one or two of them. It uses the letter "D" when one or two people are involved.)

While we know the number of admissions, we do not know the number of times that USCIS staff rejected applications (though that percentage must have been very high). We do know the number of appeals to AAO and (if you examine the individual cases) the extent to which staff denials were supported by the appeal writers in that agency.

In contrast to one or two admissions in 2009, there were 138 negative embassy worker decisions appealed to AAO that year. I reviewed a 20 percent sample of them, finding 37 rejections and one remand to the staff; that extrapolates to 133 rejections and five remands. For 2010, when I reviewed every case, there were 34 rejections out of 34 cases at the AAO level. Similarly, there were nine rejections and seven remands in 2011. In those years AAO never reversed staff decisions and granted the benefit sought.

As I reconstruct it from the texts of the decisions, in 2008 and in 2009 USCIS decided to deny a number of 1957 Act cases, some of which had been lying undecided for years. This set in motion the appeals to the AAO noted above. AAO, in turn, solidly supported the earlier staff decisions and this provision in the law turned out to be a closed loophole, rather than an open one.

Using the hard counts in 2010 and 2011 and the extrapolations from 2009, combined, these are the nations of origin of those filing the (failed) embassy worker appeals:

  • Pakistan: 75
  • Bangladesh: 33
  • Phillippines: 24
  • Zimbabwe :15
  • Ecuador: 6
  • Senegal: 6
  • Honduras: 5
  • Sierra Leone: 5
  • Sri Lanka: 5
  • Zaire: 2
  • Kenya: 1
  • Uganda: 1
  • Nation Unknown: 10
  • Total: 188

Usually when AAO said no to an embassy worker it ruled that the alien had not done either diplomatic or semi-diplomatic work. In other cases, when the applicant was a full-fledged diplomat the agency found that the applicant had not shown that conditions in the home country were so bad, either in general or for the diplomat personally, that he could not return. (A man from Ecuador, who had served as a consul general in the States, argued, in vain, that the new president of his country was a personal enemy; I am not convinced that AAO got that one right.)

About 40 percent of the AAO cases were for the embassy workers themselves, and the other 60 percent were for their spouses and children. In cases where the parent or the spouse had been found ineligible, the relative was ruled equally ineligible, but there were individual files on all aliens who had applied.

The overwhelming majority of the appeals were filed by lawyers. Though I did not examine this variable in detail, the State Department seems to have supported this set of USCIS decisions. It strikes me as highly likely that the ambassadors from these poor nations did not want to see their clerical staffs leave in droves if they could get green cards instead.

Many of the 2010 and 2011 decisions seemed to relate to further appeals to AAO of cases already denied by that agency. Unfortunately, as we have noted before, that agency has a sense of privacy that is so severe that the names of the applicants, their lawyers, and the judges themselves are scrubbed from the record. Sometimes over-zealous clerks redact the names of the countries of origin though that is not agency policy. All of this makes it difficult to impossible to match a new decision with an old one.

While there is a lot of data on the AAO decisions it is not known to what extent the failed applicants have left the country. Many must still be here in illegal status, but none of them, wherever they are, are in a position to file follow-on family petitions creating chain migration.