The RFE-Happy CIS

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Immigration lawyers and human resource managers have been dealing with RFEs (Requests for Evidence) from CIS (Citizenship and Immigration Services) for years.  CIS sends an RFE when it is not satisfied with the initial application and wants more evidence.  RFEs range from a simple request such as the need for a copy of a person’s birth certificate, to a massive multi-page request combing through every single element of the regulations and then some. 

When I started out as an attorney many years ago, I could kind of anticipate when I might see an RFE, because I knew the strengths and weaknesses of petitions I prepared and could tell when CIS (or then “INS”) might call me out on a weak point or element of the petition.  There was some predictability to CIS.  After all, both CIS and I were looking at the same law when I prepared the petition and when CIS adjudicated it.  We all played by the same rules and followed the same procedures. 

All of that seems to have changed.  

I cannot pinpoint when, but some time after 9/11, when we first began to see a proliferation of RFEs.  Not only did we receive RFEs in areas that had been previously settled, but RFEs began to be template-driven and lengthy.  Often, the RFEs bore no resemblance to the petition or the benefits sought.  We wondered if CIS even read the petitions at all.  When we expressed our concerns over these RFEs to CIS, their response was often in the tune of “The supervisor had reviewed every RFE that we sent out;” “Please do your best to respond to the RFE, and unless you respond to the RFE, we cannot continue with the adjudication process.”  

“Stop sending these meaningless and boiler-plate RFEs and stop wasting my client’s and my time?”  That’s how I felt, but I of course did not say that to CIS’ face.  

In recent conferences, practitioners across the country have expressed the same feelings about current RFEs.  L-1A and L-1B petitions are now turned into mini-O-1 petitions in order to respond to CIS RFEs.  H1B petitions for positions long recognized as specialty occupations are now challenged by CIS.  CIS has gone far outside the statutes and regulations when issuing RFEs.  They use a template and do not hesitate to add multiple boiler-plate paragraphs requesting non-relevant material.  I find it hard to believe that some of these RFEs have been vetted by a “supervisor” because they contain application of the wrong law, wrong facts, and plainly wrong attitudes.  Instead of facilitating legitimate petitions, we felt like these RFEs were meant to demoralize us and our clients and induce a withdrawal of the petition.  

In response to these RFEs, we have to think way outside of the box.  Just addressing elements and requirements covered in the regulations does not seem to be sufficient.  We have to react to trends that we see in recent RFEs.  That’s okay in a sense because that’s what good lawyers do – keep abreast of recent development of the law and adjudication trends.  However, what is of concern is the departure from established legal standards and regulations.  CIS should not be engaged in unauthorized rule-making with RFEs.  As practitioners, we are happy to work with CIS to resolve its concerns, but there is a point when we have to question whether we are even looking at the same law as CIS anymore.  

Lawyers do not like litigation because it is costly and does not resolve our clients’ problems quickly.  We prefer to work in partnership with CIS.  We hope CIS might feel the same. 

Some petitions are poorly prepared and should be RFE’ed.  RFEs sometimes help narrow the focus so that the specific concerns of CIS can be addressed.  RFEs are a part of the system and can be helpful.  However, boiler-plate RFEs that go far beyond the scope of the regulations and facts of the petition are misplaced and do not serve the interests of the public.  We can only hope that CIS learn to exercise good judgment in issuing RFEs in the spirit of facilitation rather than obstruction. 


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