Long Delays and High Denial Rates Belie Immigration Report

Contrary to its mandate, the USCIS does not always adjudicate cases in a fair or timely manner. This is according to the country’s largest association of immigration law practitioners, the American Immigration Lawyers Association (AILA), based on the experience of its members in representing businesses in applying for immigration benefits.

This statement was made in connection with its challenge to a recent report which found that immigration service officers (ISOs) experience undue pressure, allegedly from USCIS leadership, to approve visa petitions.

The U.S. Chamber of Commerce, a federation of more than 3 million businesses, also disputed the finding that USCIS is making it easier for petitions to be approved. In a statement, it demonstrated that the report’s conclusions are inconsistent with the experience of the business community.

The report was released last month by the Department of Homeland Security Office of the Inspector General (OIG). It found that there exists a culture of “get to yes” within the USCIS wherein ISOs are sometimes pressured to issue approvals. Following the report’s release, the House Immigration Subcommittee called a hearing on February 15, 2012.

Fraud and outside influence aimed at the approval of visa petitions of clearly ineligible applicants would doubtless undermine immigration benefit adjudication and understandably be a cause for concern. However, statistics and testimony of witnesses at the hearing disprove the report findings.

As AILA raised at the hearing, if indeed there is undue pressure to grant petitions then it follows that approval rates must also be high. The opposite seems to be true, however.

For instance, based on data from USCIS itself, in the last four years there has been a dramatic increase in the denials of L-1 and H-1B petitions.

The National Foundation for American Policy analyzed the numbers and found that between 2007 and 2011, the denial rate of L-1B petitions rose from 7% to 27%. The L-1B category is used by multinational companies to allow personnel with “specialized knowledge” to work in the United States. The AILA notes that the change in approval rates took place without a corresponding change in the law or regulations.

At the same time, H-1B denials jumped from 11% in 2007 to 29% in 2009. In 2011 the denial rate was down to 17% but this is still higher than in the past.

The same trend could also be seen in L-1A petitions (managers and executives of multinational companies) and O-1A petitions (aliens with extraordinary ability in the sciences, education, business or athletics).

Longer delays also ensued from the increased use of “Requests for Evidence” which officers use to obtain more information instead of granting or denying the petition right away.

The president of the USCIS officer’s union testified at the hearing that there is no culture of getting to yes within USCIS. The Inspector General himself said that they found “no conspicuous fraud” in immigrations benefit adjudications.

The methodology for the study was also criticized as weak and unscientific by AILA and the Chamber of Commerce. They believe that the OIG drew conclusions from a very small and self-selected sample.

The OIG interviewed only 147 managers and staff and received only 256 responses to an online survey, which represent only 2% of the total number of personnel involved in immigration benefit adjudications. Even Rep. Zoe Lofgren, a ranking member of the Subcommittee, called the report “amateurish”.

The AILA and Chamber of Commerce gave examples of actual experiences that contradict the report’s findings of undue influence. These cases highlight the arbitrary standards being applied by the USCIS and the burdensome requests and lengthy processes that U.S. businesses are subjected to. As some of those experiences illustrate, the negative trend in adjudication has also led to the loss of jobs of U.S. workers.

Indeed just by looking at the statistics and experience of businesses, it appears that the USCIS instead suffers from what some have termed a “culture of no”. Perhaps the USCIS should instead realize the need to develop a culture that would bring the United States where it needs to be in today’s global economy.