USCIS' AAO (Administrative Appeals Office) Appears to be Moving In The Right Direction


May 24, 2014

AAO is in dire need of a Rulemaking. It has been so since 1995 when one was first contemplated. It has been revisited several times in the past nearly two decades. A more serious rulemaking was contemplated just before 9/11 happened and all hell broke loose. Needless to say that it got put on the back burner bit was for really good reasons. They knew that a restructuring was in the making. Eventually the Homeland Security Act of 2002 (HSA), regrouped at least 22 different agencies from across several Departments thus creating the Department of Homeland Security (DHS). The Administrative Appeals Office (AAO) shifted from the former Immigration and Naturalization Service (INS) into DHS’ U.S. Citizenship and Immigration Services (USCIS). The key factor in that restructuring was that AAO shifted from a Law Enforcement Agency to a Benefits Granting Agency. While I and most folks refer to USCIS as a Benefits “Granting” Agency, they also withhold, deny, and cease to renew, or sometimes revoke, terminate, or rescind such benefits. In essence it may be better to at least think of them as a Benefits “Determination” Agency.

USCIS, like any other agency that performs similar adjudications, issues decisions. Many decisions result in the issuance of some tangible proof of a benefit having been bestowed. For instance, tangible proof might come in the form of a permanent resident (green) card (PRC), or an Employment Authorization Document (EAD card), or perhaps a Certificate of Naturalization or Citizenship. When the decision is negative rather than affirmative, a formal written notice of denial, or of revocation/rescission, or intent thereof, as applicable, will be issued. Some denials are nothing more than a form letter; some even have check boxes on them. Other formal written decisions will become more complex in proportion to the increased level of difficulty in applying for the benefit requested. The N-400, Application for Naturalization, may be viewed as having a highly complex review process. This is so because it first has an administrative path if the applicant is seeking review (the N-336 Request for Second Hearing) and then a judicial path. N-400 denials can be extremely complex especially when denied due to a criminal history. AAO deals with challenges to denials or revocations in at least fifty (50) different case types, but not the N-400.

The situation and circumstances described above fully supports, or as some might say, demands, action by AAO. The AAO has become more proactive lately in their renewed efforts to finalize that long overdue rulemaking. They have taken baby steps at least since the mid-2000s when USCIS toyed with the notion of the “USCIS Adopted Decisions” (something that has fallen to the wayside). Beginning in 2010, AAO and USCIS finally went through the arduous Precedent Decision consultation process which turned two of those adopted decisions into Precedents. While the AAO Rulemaking has been languishing on and off on the DHS Regulatory Agenda for some years, AAO has stepped up and renewed their efforts. There is an AAO Engagement on Wednesday, May 28, 2014 at 2:30pm (Eastern). I sent my R.S.V.P. and have the call-in information for that AAO teleconference. Their “in-person” space was seemingly quite limited. To tell the truth, I personally much prefer the teleconference option for stakeholder engagements.

In my periodic perusals through AAO’s posted non-precedent administrative decisions, I have observed some improvements in overarching process considerations. One critical issue has started to really catch my eye. I speak of AAO’s demand for better quality adjudication decision processes below and higher quality for written decisions. Here are some excerpts from a recent AAO Remand Decision of an I-526 petition that the initial adjudicator had wanted to deny. That particular AAO Decision is dated March 7, 2014, and is found here.

“The AAO will remand the matter back to the chief to consider whether a recent memorandum requires deference to the economic analyses in the record and, if not, to provide notice to the petitioner as to why not such that the petitioner can file a meaningful appeal.”

* * * * *

“As the chief did not explain why the economic impact and feasibility analyses filed in support of the instant petition were not afforded due deference, the petitioner was unable to file a meaningful appeal. Thus, the AAO is remanding the matter to the chief to determine whether any of the four economic impact and feasibility analyses in the record should be afforded deference. If the chief determines that deference is not warranted, the chief must explain that determination to the petitioner such that she may file a meaningful appeal.

In light of the above, the AAO remands the matter to the chief for a new decision that explains its compliance with the May 30, 2013 Policy Memorandum.”

* * * * *

“Based on the reasons stated above, this matter will be remanded. The chief must issue a new decision, containing specific findings that will afford the petitioner the opportunity to present a meaningful appeal. …”

It is evident to me that AAO has been paying attention to submitted comments as well as published commentary. They became more open to the opinions of stakeholders back in August 2011, at least. Remember that they requested Amicus Briefs on the Kazarian analysis back on August 8, 2011, see the request here. The five briefs are still posted on the AAO’s webpage among its “Quick Links” here. My brief was initially submitted anonymously but I have subsequently gone on to post it publicly on, the actual brief itself is here. I hope that you noticed the repeated call from AAO for greater specificity about details and facts gleaned from the evidence as well as a need to list specific findings in order afford the applicant or petitioner a basis and opportunity to make a meaningful appeal.

I am happy to report that USCIS seems to be making headway across-the-board against the Legacy INS “Culture of NO!” This can be seen in the many new AAO Decisions, albeit non-precedential decisions, which are getting publicly posted in a matter of a week to a month or so, instead of a year or two or so. AAO has lightened up a bit and seems poised to embrace its changed role and shifted identity. I don’t think they want to be “the big bad” anymore. AAO seems to want to be one of the good guys and feel as happy as the frontline Immigration Officers swearing someone in as a new U.S. Citizen or welcoming them with an approved visa or green card.

That’s my two-cents, for now.

Reprinted with permission.

About The Author

Joseph P. Whalen

Joseph P. Whalen is an independent EB-5 consultant, advocate, trainer and advisor.
1348 Ridge Rd | PMB 36 | Lackawanna, NY 14218
Phone: (716) 604-4233

DISCLAIMER: Work is performed by a non-attorney independent business consultant. It is the client's responsibility to have any and all non-attorney work products checked by an attorney. I provide highly-individualized training based on consultation with my clients. I serve Regional Center Principals and their counsel, potential EB-5 investors, and project developers. I am not an attorney myself although I have trained numerous attorneys and INS/USCIS adjudicators in complex issues within immigration and nationality law when I was an adjudicator there for many years. I do not prepare forms, write business plans, or create economic analyses. I do review them for clients prior to submission and suggest corrections and/or modifications to run by your attorney and investment advisor.
NAICS Code: 611430 Professional and Management Development Training

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.