Listening Session with the Administrative Appeals Office (AAO)
On October 20, 2010, the Administrative Appeals Office (AAO) and the Office of Public Engagement (OPE) hosted the first ever national stakeholder engagement regarding the AAO. Director Alejandro Mayorkas opened the session with the following two announcements:
Director Mayorkas then handed the meeting over to Perry Rhew, Chief of the AAO. Mr. Rhew began by telling stakeholders about a blog, written prior to Mr. Rhew becoming the AAO Chief, that was very critical of the AAO. Mr. Rhew took note of the criticisms and assessed the need for change, attempting to enlighten the public on how the AAO conducts business. Throughout the engagement, Mr. Rhew shared with stakeholders what the AAO focused on over the past year, addressed questions, and listened to feedback from individual stakeholders. The session was for USCIS to listen to the views of individual stakeholders and was not used for the purpose of obtaining group or consensus advice.
AAO Structure and Staff
The AAO is divided into nine branches – seven subject matter branches, one fraud branch, and one management support branch. Currently, the AAO has 88 employees, 59 of whom are adjudications officers. The AAO staff includes adjudicators with extensive experience at USCIS and/or the Immigration and Naturalization Service (INS) and 66 attorneys. Generally, AAO adjudications officers specialize in a particular type of case, but the AAO moves officers between branches and retrains, as necessary. The AAO will be adding a number of new positions in Fiscal Year 2011. Stakeholders can view the organization chart at www.uscis.gov/aao.
Role of the AAO
The role of the AAO is to produce appellate decisions that provide fair and legally supportable resolutions of individual applications and petitions for immigration benefits. These decisions provide guidance to applicants, petitioners, practitioners and government officials in the correct interpretation of immigration law, regulations and policy. The AAO weighs in on matters affecting USCIS operations as a member of the senior leadership team. While the AAO has a long history of discussing legal and policy issues with other USCIS entities, it does not seek their input prior to reaching a decision in an individual case. The AAO does not seek to speak for the Office of Chief Counsel or the Office of Policy and Strategy, or for any other entity other than the AAO.
The Appeals Process
The AAO reviews appeals on a de novo basis, which means the AAO takes a new look at the entire case as if no decision had previously been issued. When a case arrives at the AAO, the branch manager assigns it to an adjudicator who drafts a decision in the case. Each decision goes through further review before being put in final form and mailed to the parties to a case.
In some instances, the AAO will also review cases that are certified from USCIS field offices. A certification is a request by a USCIS field office for a review of a decision (approval or denial). USCIS field offices will certify a case to the AAO when the facts or issues of a case are so novel or complex that review by the AAO is an appropriate means of obtaining guidance. In response to a stakeholder question, USCIS also clarified that is does not have jurisdiction over Cuban Adjustment Applications that are denied, but that there are instances where the field will certify a denial to the AAO, which explains why Cuban Adjustment Applications are listed on the USCIS website as an application under the jurisdiction of the AAO.
Individual stakeholders asked a number of questions relating to the process, including:
Requests for Evidence
The AAO does, on occasion, issue a Request for Evidence (RFE). There is no discretion in extending the timeframe for a response. The maximum time allowed for a response is 12 weeks.
AAO Information Online
The AAO has established a web presence on the USCIS website (www.uscis.gov/aao) where stakeholders can find an overview of the AAO, information on how to file an appeal and case processing times. Case processing timelines are updated monthly and new information is being added to the AAO page as it is developed. For example, during the session the AAO referenced a document being developed that outlines the precedent decision process. This document has since been posted on the AAO page noted above.
USCIS recognized that accessing information, particularly AAO decisions, still remains an issue and noted that it is something that needs to be worked on going forward. Currently, stakeholders can find administrative decisions by visiting www.uscis.gov/laws and clicking on “Administrative Decisions.”
Processing Times and AAO Staffing
During the past year, the AAO set a goal to achieve a processing timeframe of less than six months for at least 25 of the 41 types of cases reported online each month. By the end of the year, 31 of the 41 types of cases had an average processing time of less than six months. USCIS noted that some form types take a significant number of months to process purely because of the number of appeals of that type the AAO receives and staffing. On three occasions this year, the AAO shifted resources and retrained adjudicators to move them to more pressing caseloads. As additional adjudicators come on board in Fiscal Year 2011, USCIS hopes to reduce the backlog, in particular for the H-1 nonimmigrant classifications and for Forms I-140 and I-601, Application for Waiver of Ground of Inadmissibility.
One stakeholder raised a concern regarding the processing time for H-2A and H-2B appeals noting that by the time the case gets to the AAO it becomes a moot point. The AAO stated that it is aware of this concern and hopes to also address this with additional staff. In addition, some stakeholders commented that a decision on the merits for these cases is helpful in preparing future cases. Another stakeholder noted that the processing reports are a measure of those cases that have reached the AAO, which means the reports do not account for all pending appeals since some have not yet arrived at the AAO. Form I-601 appeals filed abroad were given as an example. USCIS acknowledged that this is an ongoing issue and something that the agency is trying to address.
Some stakeholders requested information on expedited appeals. The AAO gets a large number of requests to expedite an appeal and it reviews each request on a case-by-case basis. While the AAO attempts to be lenient with requests to expedite an individual case, it does attempt to follow internal USCIS guidelines. Stakeholders can find general USCIS guidelines on requesting an expedite by visiting www.uscis.gov, clicking the “Forms” tab, looking under the “Forms Guidance” heading on the right side of the page and clicking on “Expedite Criteria.”
The AAO hopes to reduce the overall processing time with additional, well trained adjudicators. Questions were raised during the stakeholder engagement concerning staffing and training of AAO adjudicators. While the majority of adjudicators at the AAO are attorneys, several non-attorney adjudicators bring a wealth of historical knowledge of legacy INS issues and have adjudicated immigration appeals for years. The AAO tries to achieve a healthy mix of seasoned and newer adjudicators, knowing the importance of encouraging diversity in the workforce. AAO adjudicators are trained by seasoned adjudicators and subject matter experts familiar with the laws and regulations surrounding the immigration appeals process. As laws change and new information becomes available the adjudicators are provided updates accordingly.
In addition to improved online access to AAO decisions, some stakeholders asked about available statistics on decisions made by the AAO. USCIS noted that it is limited in its ability to provide statistics as the statistics are not owned by the agency, but rather, are owned by the U.S. Department of Homeland Security (DHS). The AAO is working with the USCIS Transformation Leadership Team to ensure case information is correctly tracked during the transition to full transformation by the agency.
Some stakeholders asked about precedent decisions, which are binding on all DHS employees in the administration of the Immigration and Nationality Act (INA). Prior to October 20, 2010, USCIS had not issued a precedent decision since 1998. The two precedent decisions issued on October 20, 2010 were published as a result of collaboration between DHS and the U.S. Department of Justice (DOJ). Over the past year, the AAO has met with each of the seven entities within the departments that must review proposed precedent decisions and established a streamlined process. During the session, USCIS emphasized the importance of having this process back in place and noted that the two decisions were not a reflection of what USCIS considers the most significant or pressing issues.
Some stakeholders asked how USCIS determines that a case should be a precedent decision. USCIS stated that if the AAO determines that a case should become a precedent decision, it raises the case with the USCIS Senior Policy Council for them to review. If the Senior Policy Council agrees that the decision should be a precedent decision, USCIS initiates the process. As stated above, USCIS has developed a presentation outlining the precedent decision process, which can be found at www.uscis.gov/aao.
One stakeholder suggested that all cases should become precedent decisions unless a similar decision is already published.
The two precedent decisions are Matter of Al Wazzan, 25 I&N Dec. 359 (USCIS 2010) and Matter of Chawathe, 25 I&N Dec. 369 (USCIS 2010). The texts of these decisions are available through WESTLAW and LEXIS, and at http://www.justice.gov/eoir/vll/libindex.html.
Some stakeholders asked USCIS to reconsider the following policies:
The AAO stated that it is working to publish a proposed regulation that will help streamline the appeals process and give the public a much better understanding of what to expect when they file an appeal. The proposed AAO regulation, to be published for public comment soon, will address the third issue noted above and may provide an opportunity for stakeholders to comment on other policies, such as the first and second issues noted above.
Stakeholder Engagement Follow Up
Following the stakeholder engagement Mr. Rhew established a separate email box for receipt of additional questions. Several questions pertaining to specific cases and issues were received. Mr. Rhew followed up on those questions with individual practitioners, addressing the specific concerns during the two week period after the engagement and incorporating more general questions into the responses above.
Last Reviewed/Updated: 02/04/2011