The first rule of gambling is that the odds always favor the house. U.S. Citizenship & Immigration Services (USCIS), the unit within Homeland Security tasked with conferring or refusing requests for immigration benefits, has started its own casino of sorts. And the house, not surprisingly, is winning.
As business and family petitioners have come to hear from their shell-shocked immigration lawyers, USCIS regional service centers (RSCs) have been spewing forth Requests for Evidence (RFEs), Notices of Intent to Deny (NOIDs) and Denial Notices faster than a baseball-pitching machine at a funhouse. Have companies and families all of a sudden become less qualified en masse for immigration benefits than in prior years? The odds are that the answer is no. Rather, the rules of play have changed, but the house’s management has not officially announced them.
In short, boilerplate bad-news correspondence, especially in the employment-based visa categories of the H-1B, O-1 and L-1, set forth new rules, typically without citation to authority, under which what once was clearly approvable is now suspect, disbelieved and deniable or denied. The USCIS adjudicators issue their edicts in ipse dixit fashion, ignoring statutes, legislative history, regulations and decades-old headquarters policy guidance.
Seasoned observers are puzzled at the reasons prompting this sea change in applying the rules of play. Some suspect that agency personnel, so reliant on user fees for day-to-day operations, may act (even if only subconsciously) in the knowledge that denials lead to more fee revenues from motions to reopen and administrative appeals. The cynics point to the recent USCIS reinstatement of its Premium Processing Service for most employment-based immigrant visas, at $1,000 extra a pop, and predict the result to be faster denials and more motion and appeal revenues.
Others doubt that fee-churning is the root cause. Instead, they point to the foregone conclusion, stoked by a flawed internal report, that fraud and technical violations are rampant. The meme that fraud is everywhere has spooked adjudicators into suspecting every petitioner, no matter how reputable and worthy, by demanding more and more documentary evidence which is scanned for the smallest inconsistency. The perceived inconsistency then allows the adjudicator to claim that all of the submitted evidence may also be doubted.
But surely cooler heads will prevail, you say. Undoubtedly, you assume, the Administrative Appeals Office (AAO) will overturn unjustified or unjust decisions.
It’s difficult to be confident that the AAO, another USCIS unit, will reverse decisions of their compatriots. The AAO publishes no rules of procedure, or statistics on the rate that adjudicator decisions are overturned, and does not require that the “jurists” in this administrative tribunal be admitted to the bar or adhere to a code of judicial conduct.
Moreover, foreign nationals who’ve been denied immigration benefits in most cases have no legal standing to appeal or be heard, but instead must rely on a sponsoring employer or family member who, as the “petitioner,” has the right to appeal. If the petitioner takes the case to the AAO, USCIS house rules make the stakes for the foreign citizen very high. If they wait in the U.S. to see whether the AAO overturns the adjudicator’s decision, the wait comes with harsh consequences. During the waiting period, they have no right to work, and worse yet, if the AAO rubber-stamps the RSC adjudicator’s decision, the penalty for losing is a determination that the foreign citizen — merely for waiting in the hope that justice will be served — is in a condition of “unlawful presence” and (once they leave the U.S.) is barred from returning for anywhere from three to ten years. The House of USCIS will not apply the unlawful-presence bar, however, if the AAO reverses the adjudicator’s denial of immigration benefits. This may tempt some foolhardy foreign citizens to try and wait out an appeal, however remote the chance of success, in the hope that Lady Liberty and Lady Luck are with them.
The stakes of justice and the rule of law ought not be so high as to require a ten-year ante.