USCIS Sheds a Little Light on Denial Rates

By David North, November 21, 2012

Denial rates in the Deferred Action for Childhood Arrivals (DACA) amnesty are still being kept under wraps by USCIS, but some light was shed on related subjects recently; further, the agency earlier released some numbers on non-DACA denial rates.

As many have noticed, USCIS is much more likely to talk about case volume (receipts) or grants (approvals) than it is about denials of applications. This is in keeping with its self-image as a benefit-granting agency.

In one of his fairly regular teleconferences with agency "stakeholders", primarily but not exclusively immigration lawyers, USCIS Director Alejandro Mayorkas on Monday spoke of more than 53,000 approvals in the DACA program (for illegals who arrived here before their 16th birthday), but said it was premature to issue any denial figures. He made two interesting sets of comments in this connection.

First, he made a distinction in DACA between "rejections" and "denials". The former rulings are made by clerical staff who determine that an application is incomplete, or unsigned, or not accompanied by a check for the fee ($465). The application is regarded as still alive and is sent back to the alien who has the option of completing the package and re-submitting it. Last week USCIS announced that, of 308,935 applications received by November 15, 10,101 had been rejected.

Mayorkas' second point was that denials are agency decisions made on the full applications if applicants are not qualified for the short-term legal status offered by DACA. Mayorkas refused to put a number on the denials in a program that is now a few days more than three months old.

He did say, however, that while approvals are worked out without further delay, potential denials go into one of two time-consuming procedures. If the application is pretty hopeless (my term, not his), the alien is sent a "Notice of Intent to Deny" and is given 30 days to reply. If the application is of better quality, but not good enough for instant approval (again, my descriptions) then the alien is sent a "Request for Evidence" (RFE) and is given 84 days to reply. Given these arrangements, Mayorkas said that releasing denial data at this point was inappropriate.

CIS has heard, quite informally, that there actually have been two denials so far in the DACA program. In one case we were told that it was obvious the applicant was too old (one must have been under 31 as of June 15, 2012, to qualify), and in the other the applicant could not prove that he or she had been in the nation for the needed five years. There is no provision for the routine interview of all applicants, something that was mandatory in the IRCA amnesty of the 1980s.

Mayorkas' reluctance to discuss denial rates is typical of the agency in recent years. So it is interesting to see that kind of data when it does appear, as it did last week; the links are shown below.

The most recent agency publication reveals, as one might expect, that denial rates have fallen in recent years, which is in keeping with the agency leadership's policy direction. The most significant of the numbers in the table below are those for all immigration benefits, with the first 11 months of fiscal years 2011 and 2012 being compared. This shows a drop in the denial rate from 9.77 percent in 2011 to 7.15 percent in 2012. In each instance in the table we are using agency data on the total number of receipts as compared to the total number of denials in the pertinent time frame.

USCIS Category Receipts, First 11 Months FY 2012 Denial % FY 2010 Denial % FY 2011 Denial % FY 2012*
All Immigration Benefits 4,805,256 n.a. 9.77%* 7.15%
U Visa, Crime Victims 36,441 40.34% 17.07% 10.86%
T Visa, Trafficking Victims 1,578 23.43% 20.43% 18.06%
* First 11 months of fiscal year (October-August)

Denial rates, as such, are not published by the agency. The percentages above were calculated from the raw numbers used by USCIS.

At about the same time that USCIS published the all-benefits data, a comprehensive overview of all agency decision-making dealing with millions of people, it also released information on two of its smaller programs, the U visa for crime victims, and the rarely used T visa, for victims of international people-smuggling. I can't quite figure why the detailed data on the two small programs were published along with the macro information, but the trend line is the same: as time passes, denials decline, and more aliens are given whatever they are seeking.

In the case of T and U visas, these are first issued on a nonimmigrant basis, but the beneficiaries, given some conditions, can convert those temporary visas to full green card status.

The sharp drop in denials for the U visa is particularly troubling, as this is an unfortunate population, and one that is (by definition) closely involved with criminals, often other aliens (such as abusive alien spouses). It is often used by illegal aliens currently in the United States to convert to legal status. USCIS has been promoting the U program and the numbers of applications for it, as well as approved applications, have risen sharply. There were 10,937 applications in all of 2009, and 36,441 in the first 11 months of FY 2012.

The statistics for all immigration benefits can be seen here, and the data on the T and U classes is here.

The T and U populations are closer to the "huddled masses yearning" than to the "best and brightest", a group that is so often discussed by USCIS.