Work-Load Data Revealed for Secretive USCIS Agency

By David North on July 10, 2012

The in-house appeals agency that reviews many USCIS staff decisions is noted for its penchant for secrecy. Unlike similar entities in other departments, it issues no statistical summaries of its activities (known to me anyway) and, as we have noted before, redacts such basic items from its decisions as the names of the applicants, the lawyers, the employers, and even the adjudicators involved.

That organization, the Administrative Appeals Office (AAO), does, however, publish redacted copies of its orders.

The Center for Immigration Studies has removed one of the secrecy curtains used by the AAO on the size and nature of its workload. We did this by hand counting all the decisions of the AAO during CY 2010, the last year for which complete data are available. Why AAO uses the calendar year for its work when the rest of USCIS uses the fiscal year is just another AAO mystery.

Our tally shows a total of 7,297 decisions published during that 12-month period; each of these is an individual, or individualized document, dealing with a single appeal; most of these are by aliens, but others are by employers and by naturalized citizens.

AAO decisions are more influential than just the numbers shown, as USCIS staff people pay attention to them when making their own judgments on similar cases.

Aliens seeking green cards and other benefits when rejected by USCIS staff can appeal to the AAO in many circumstances; other appeals, dealing with family and asylum cases, among others, go to another agency, the Justice Department's Executive Office of Immigration Review (EOIR), which issues masses of data on its own work.

AAO's 88 employees, largely adjudicators, but including some support personnel, are quite productive. On average each ground out 83 appeals in that year; the average for just the decision-makers, of course, would be higher, but a breakout of AAO staff is not available by job category.

AAO does not hold hearings, unlike the DoJ's robe-wearing immigration judges; it works from paper submissions. It has the power to conduct de novo reviews of the matters before it, so it starts from scratch in its decision-making. My sense is that only the applicant can appeal, so every case involves a staff decision to deny a petition.

What kinds of petition decisions are most likely to be appealed to AAO? Our count shows these patterns:

AAO CategoryCY 2010 Decisions
IRCA Legalization Cases from the 1980s1,040
EB-3 Immigrant Workers845
Waiver of Inadmissability, Unlawful Presence717
H1-B Workers617
Temporary Protected Status481
Waiver of Inadmissability, Criminal472
Waiver of Inadmissability, Misrepresentation347
66 Other Categories3,395
All Categories, CY 20107,297

I looked at more than a score of the IRCA legalization decisions and all that I saw were covered by the Catholic Social Services, Inc., et al., v. Ridge, et al. class-action settlement regarding a major subset of the then-pending (2004) cases filed earlier under the 1986 legislation. These were cases in which illegal aliens claimed that they had entered the United States before 1982 and were otherwise eligible for the big amnesty of the time. In every case I reviewed, USCIS had declared that the alien in question was not eligible, and in every one I looked at, AAO agreed.

By definition all of these cases dealt with middle-aged and elderly illegal aliens, every one of whom had been in that status for at least a quarter of a century.

In their cases it was not so much a case of "justice delayed is justice denied", as it was justice delayed, deportations delayed (and highly likely never to happen in the future).

Aliens seeking waivers of inadmissability want permission to enter (or stay in) the United States and not to be barred from green card status, despite prior brushes with the law. Many of the TPS cases involved aliens who formerly had that status, but lost it because of criminal convictions. The situation with the green-card-seeking EB-3 aliens, including both skilled and unskilled workers, is described in detail in the CIS Memorandum "An Unintended Trifecta: EB-3 Is the Worst of the Foreign Worker Programs".

Unfortunately the agency's love of secrecy extends to statistical summaries of its work. There are no batting averages available on how often AAO agrees with staff decisions, on one hand, or the applicants' pleas, on the other. While it is possible, if tedious, to hand-count the volume of its decisions as CIS has done, it would be a much more massive task to total the approvals, denials, remands, and other outcomes of its work. Someone would have to read at least the closing paragraph of each one of the 7,297 AAO decisions and there does not seem to be an electronic system in place for performing that analysis, at least not one available to outsiders.

In some of our reviews of specific groups of AAO decisions, though these may be simply straws in the wind, we have seen solid AAO support for the staff's negative decisions, including the legalization cases just described and two other instances in which small to medium-sized groups of appeals were 100 percent rejected by AAO. For how AAO treated appeals in the immigrant investor (EB-5) program, see the CIS Backgrounder "The Immigrant Investor (EB-5) Visa: A Program that Is, and Deserves to Be, Failing", notably Table 3. For AAO decisions on some embassy employees seeking green card status for which they were not eligible, see this recent blog.

There are 73 categories of AAO decisions and we mentioned just three in the prior paragraph; AAO's decision patterns seem to be more mixed in most of the other subject areas.