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Contact: joseph.whalen774@gmail.com or 716-604-4233 or 716-768-6506 Page 1
Musings on Accusations About a Lack
of Transpar...
Contact: joseph.whalen774@gmail.com or 716-604-4233 or 716-768-6506 Page 2
Some folks are pointing to the CIS Ombudsman’s ...
Contact: joseph.whalen774@gmail.com or 716-604-4233 or 716-768-6506 Page 3
“Despite high RFE rates in 2013, USCIS approved...
Contact: joseph.whalen774@gmail.com or 716-604-4233 or 716-768-6506 Page 4
to form AAO. I won’t bore you any further with ...
Contact: joseph.whalen774@gmail.com or 716-604-4233 or 716-768-6506 Page 5
About The Author
I tell you what you NEED to he...
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Musings On Accusations About a Lack of Transparency within USCIS AAO

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Musings On Accusations About a Lack of Transparency within USCIS AAO--Some say there is "rubber-stamping" happening at AAO but I'm not buyin' it! Nobody could take that long or write that much if they were "rubber-stamping" anything!

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Musings On Accusations About a Lack of Transparency within USCIS AAO

  1. 1. Contact: joseph.whalen774@gmail.com or 716-604-4233 or 716-768-6506 Page 1 Musings on Accusations About a Lack of Transparency Within USCIS’ AAO Joseph P. Whalen (January 25, 2015) There have been both veiled and overt accusations about the level of autonomy within the U.S. Citizenship & Immigration Services’ (USCIS’) Administrative Appeals Office (AAO). Some accuse AAO of “rubber- stamping” appeals of initial USCIS denials. If that were true then, we should see extremely high dismissal rates and abysmally low rates of sustained and/or remanded cases across ALL visa categories at the appellate stage of adjudication. However, it appears that that is not the case. It appears that some categories more than others see the very high dismissal rates. These same categories have previously been shown to have such high fraud rates that special studies have been ordered by Congress, special “fraud prevention fees” have been imposed by Congress, and USCIS’ Fraud Detection and National Security Directorate (FDNS) was created and has been tasked with focusing on these problems. FDNS has been tasked with performing “site-visits” and that has left many, shall we say “low caliber petitioners” running scared. Fear tends to evoke certain responses. It is simple human nature to become defensive and attack one’s attacker or accuser. It seems that perhaps some of the folks behind poor quality petition filings are loudly crying foul and making accusations of “rubber-stamping” denials at the appellate stage. I’m not buying into that very transparently trumped up argument. I have seen many cases up close and personal. I have seen various industry segments grow complacent in assuming too much and taking too much for granted (literally). There has been a very long and concerted effort to erode the burdens of proof for certain occupations and for certain visa categories (both immigrant and non- immigrant). Complacency is being challenged and we are seeing a backlash from that effort. As many current AAO decisions are finding, some petitioners and practitioners are under the misguided belief that certain occupational titles will guarantee approval, especially H1-B software designers, programmers, or engineers. Also, many post-graduate fellows seem to think that their fellowships automatically transform them into an “alien of outstanding ability” or “professionals with advanced degrees” who are worthy and deserving of a “national interest waiver”. It simply is not so! I rarely ever say that anything “is that simple” but this is that rare occasion.
  2. 2. Contact: joseph.whalen774@gmail.com or 716-604-4233 or 716-768-6506 Page 2 Some folks are pointing to the CIS Ombudsman’s Annual Report for 20141 , as definitive proof of AAO bias. I am not buying that either. However, in all fairness, let’s have a look at what is being touted as proof of bias and a contradiction from the same source. “USCIS Administrative Appeals Office: Ensuring Autonomy, Transparency, and Timeliness to Enhance the Integrity of Administrative Appeals In the 2013 Annual Report, the Ombudsman discussed issues pertaining to the Administrative Appeals Office (AAO), including a lack of transparency regarding AAO policies and procedures, and challenges for pro se individuals who seek information in plain English about the administrative appeals process. Over the past year, USCIS eliminated lengthy processing times once cases reach the AAO and revised its website content. However, stakeholders still report issues stemming from the manner in which the AAO receives, reviews, and decides appeals2. Of particular concern is the need for an AAO practice manual3; the absence of any up-to-date statutory or regulatory standard for AAO operations; the AAO’s lack of direct authority to designate precedent decisions; and the length of time for cases to be transferred to the AAO from USCIS service centers and field offices for review, and vice versa for remand. In this Report, the Ombudsman publishes AAO data, provided by USCIS, for select form types. The Ombudsman will further evaluate and discuss this data with USCIS in the coming year to better understand the disparities in the AAO sustain and dismissal rates among immigration benefit types.” Id. at p. ix. I saw an article that cited the Annual Report in order to conclude that AAO “rubber-stamps” up to 99% of the cases appealed for certain “high- skilled” work visas. That same report, while critical of the RFE rate in these cases, acknowledged that USCIS, as a whole, approves most “high-skilled” work visa petitions. The low percentage of denied cases that get appealed usually are substandard filings for non-qualifying beneficiaries, sometimes filed by non-qualifying petitioners, supported by poor quality evidence for visas categories for which the position does not even qualify. 1 http://www.dhs.gov/sites/default/files/publications/cisomb-annual-report-2014-508compliant.pdf 2 You don’t have to be a genius or perform a study to figure out that people don’t like to be denied what they want. 3 With AAO’s history and current subjugation, don’t expect a practical manual. The dust has not settled yet at USCIS and especially AAO and with more expansion in the works, the dust won’t settle soon.
  3. 3. Contact: joseph.whalen774@gmail.com or 716-604-4233 or 716-768-6506 Page 3 “Despite high RFE rates in 2013, USCIS approved more than 94 percent of H-1Bs filed, 83 percent in the L-1A classification, and 67 percent in the L-1B classification. High RFE rates coupled with high approval rates indicate USCIS needs to better articulate evidentiary requirements.” Id. at p. 23. So there appears to be more bias in the reporting about the CIS Ombudsman’s Report than proof of AAO bias contained therein. As anyone who regularly reads my articles can tell you, I find fault with many AAO decisions but only when I can truly detect some kind of problem with it. When looking at the big picture, there really is less controversy than some folks would have us believe. I will admit that the L1-B and EB-2 National Interest Waiver (NIW) cases do need further guidance and I have offered some in various articles for the past several years.4 Given the overall high approval rates and the small number of denials that are overturned on appeal, it suggests to me that USCIS gets the vast majority of decisions right the first time through the process. Also, as my faithful readers can attest, many denied petitioners (many of them self-petitioners) file an almost endless stream of pointless motions following an appeal dismissal. I have to ask if those cases are skewing the AAO rates being bandied about to demonstrate the extreme “rubber-stamping” that isn’t really happening. I agree with certain criticisms in the Ombudsman’s Annual Report. To begin, AAO needs to actually publish a Proposed Rule in the Federal Register as it far too long past due. Just to refresh your memory or perhaps this might be new information for some readers, the Administrative Appeals Unit (AAU) was created back in 1983. At that time, the Attorney General created the Executive Office of Immigration Review (EOIR) in order to group the Immigration Court System, the Board of Immigration Appeals (BIA or Board), and the Office of the Chief Administrative Hearing Officer (OCAHO) with its Administrative Law Judges (ALJs) into one semi- autonomous component, somewhat apart from the Immigration and Naturalization Service (INS). INS retained the AAU which was a gathering together of the administrative review powers of the various Regional Commissioners and those of certain Headquarters staff members. There was also a Legalization Appeals Unit (LAU) created in 1987at which time, EOIR was formally separated and became an independent agency with the Department of Justice (DOJ) through a notice and comment rulemaking. In 1994, there was a further reorganization and AAU was combined with LAU 4 I have submitted materials (briefs and articles) to AAO for consideration on some of these topics.
  4. 4. Contact: joseph.whalen774@gmail.com or 716-604-4233 or 716-768-6506 Page 4 to form AAO. I won’t bore you any further with a recap of the creation of the Department of Homeland Security (DHS) and its various immigration- focused agencies. AAO has been in need of a rulemaking since at least 1994. It could be argued that the rulemaking has been needed since the separation of EOIR from INS in 1987 or from the very beginning in 1983. There have been many rules promulgated about administrative appellate functions but the overwhelming vast majority relate to Immigration Courts and the BIA, in the older version of 8 CFR Part 103, Subpart A, as well as OCAHO and the ALJs in 28 CFR Part 68. AAO currently relies on what is left of 8 CFR Part 103, Subpart A, in what is now Chapter I. Meanwhile, EOIR regulations have been recodified as Chapter V and subsequently modified. The AAO authorities are not well defined in the regulations and there is no AAO Practice Manual, yet. I understand that, as is noted in the Ombudsman’s Annual Report, an AAO Practice Manual is likely to come about eventually. I just hope and pray that it with actually be “Practical” instead of “Pointless”. Regardless of what whatever criticisms I have about AAO, a lack of integrity and fairness is not among them. Suspicion of “rubber-stamping” is not among them. Dishonesty or corruption is not among them. A lack of true autonomy, however, is a matter that I am not so sure about. Does AAO have to simply uphold any and all Policy Decision(s) foisted upon it? What if AAO, itself, independently determines through deep study and research that a particular Policy Decision is, in fact, contrary to law? What do they do then? Do they kowtow to Management and allow themselves to be political pawns? It is hard to say. Is AAO truly on an equal footing with the BIA with recourse to the Attorney General via the Secretary of DHS? All of the above are questions that I don’t believe have been asked in the open in Washington, D.C. We cannot allow these major issues to remain unaddressed any longer. I urge the readers to speak up, write letters to USCIS, DHS, CISOMB, EOIR, BIA, the Secretary and Attorney General in order to demand action and answers. Then, work on Congress! Joseph P. Whalen
  5. 5. Contact: joseph.whalen774@gmail.com or 716-604-4233 or 716-768-6506 Page 5 About The Author I tell you what you NEED to hear, not what you WANT to hear! Joseph P. Whalen Independent EB-5 Consultant, EB-5 Advocate, Mentor, Trainer and Advisor 238 Ontario Street | No. 6 | Buffalo, NY 14207 Phone: (716) 604-4233 (cell) or (716) 768-6506 (home, land-line) E-mail: joseph.whalen774@gmail.com web http://www.slideshare.net/BigJoe5 or http://eb5info.com/eb5-advisors/34-silver-surfer DISCLAIMER: The opinions expressed in my training are those of me only. That is to say that they are opinions of a layperson, non-attorney, non-economist, non-accountant, non- FINRA or SEC registered broker or adviser. Any information or consultation that seems like “incidental investment advice” is intended merely as educational, coaching, and mentoring5. Opinions are based on work experience as an Adjudications Officer within INS and USCIS with particular involvement in the revitalization of USCIS’ EB-5 Program, especially that portion dealing with Regional Centers. I wrote the “Unofficial Instructions” on how to apply for Regional Center Designation which later formed the basis for the I-924 Form Instructions. I am an outspoken advocate for improved adjudications at USCIS. Lastly, I have been published in various immigration law outlets with well over 125 scholarly articles and opinion pieces widely circulated as well as a published contributing author in three EB-5 Law Books; co-editor in the most recent. Please click the hyperlinks above and explore my writings. Training is available for any subject under immigration and nationality law. NAICS Code: 611430 Professional and Management Development Training 2012 NAICS Definition: 611430 Professional and Management Development Training This industry comprises establishments primarily engaged in offering an array of short duration courses and seminars for management and professional development. Training for career development may be provided directly to individuals or through employers' training programs; and courses may be customized or modified to meet the special needs of customers. Instruction may be provided in diverse settings, such as the establishment's or client's training facilities, educational institutions, the workplace, or the home, and through diverse means, such as correspondence, television, the internet, or other electronic and distance-learning methods. The training provided by these establishments may include the use of simulators and simulation methods. That’s My Two-Cents, For Now! 5 See: 15 U.S.C. §80b–2. (a)(11) or go to: http://uscode.house.gov/view.xhtml?req=(title:15%20section:80b- 2%20edition:prelim)%20OR%20(granuleid:USC-prelim-title15-section80b-2)&f=treesort&edition=prelim&num=0&jumpTo=true

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