I started my legal career as a litigator. Formulating legal arguments against an “adversary” was ingrained into me during my early formative days as a legal professional. I remain passionate about litigation practice, which has equipped me with the fundamental skills and tools as a lawyer. I see how it has helped me in other areas of law, especially the practice of immigration law and answering the dreaded Request for Further Evidence (“RFE”). When the daily mail arrives, my heart still goes into a flutter as official government envelopes are opened to reveal approval notices — proxies for one applicant’s American Dream about to be embarked upon.
This enjoyable and rewarding ritual is increasingly disrupted by jaw-dropping correspondence from United States Citizenship and Immigration Services (“USCIS”) — the Request for Further Evidence aka “RFE”. To put it rightly, a warranted RFE — and some indeed are — is not a bad thing, offering a second opportunity to clarify what may have been ambiguous in the initial petitioning papers.
An unwarranted RFE, which any attorney will undoubtedly and occasionally receive no matter how well-prepared the submission may have been, however, will cause me to erupt into a series of internal conniptions. Occasionally it causes me to let out a sigh colored with expletives, creating a hostile order capable of triggering multiple unpleasantries under state and federal law. Living in New York, the city where every other person I meet has a personal therapist, I know that anger swallowed often morphs into depression. To avoid that dreadful fate, I pen this post as a way to release outrage, stay healthy, and enlighten the course of RFE avoidance and response in light of the recent market trend in an uptick surge in RFE issuance.
Utilize the law and regulations as your key weapons. While any capable immigration lawyer understands the legal requirements to establish eligibility for the requested status or visa benefit, and knows how to gather supporting evidence, the RFE avoidant attorney must also be familiar with the latest patterns among USCIS adjudicators in asking for legally irrelevant evidence. For example, even if you already submitted a lengthy list of awards and recognitions garnered by the applicant’s projects, you may be asked to re-establish the “distinguished reputation” of the project again, or for example, although it is clear from the record of evidence that the beneficiary played a lead and starring role as attested to by numerous recommendation letters, you may be questioned again as to whether the applicant really did play a lead or starring role. Unfortunately, there is no treatise or hornbook that can help the hapless lawyer find out trends in RFE demands because these documents, though templated, change appearance as readily as chameleons. The only way that we discern RFE trends (other than receiving them in bulk) is to network and share notes with other immigration attorneys, paralegals and professional associations such as American Immigration Lawyers Association (“AILA”). More often than not, going back to the basics and throwing the regulatory definition of what it means to be “extraordinary” and “distinguished”, along with the defining precepts of “distinction”, “achievement” and “ability” back at the adjudicator in the context of the evidence submitted is a tactful step to take as well.
Make it easy for the adjudicator to reach a “Yes.” Having gathered all evidence, and sorting out the relevant from the irrelevant, the helpful from the unhelpful, and the harmful from the unharmful, the attorney should provide proofs in a systematically logical and organized manner. The attorney’s cover letter (which in actual reality, the officer may or may not read) should be a roadmap towards eligibility for the classification being sought after. It should refer to an index of clearly-tabbed and logically-organized documents, refer to the facts evidenced in the record, describe in summary form what each item of evidence purports to establish and why each is relevant or not. The attorney’s cover letter should, if the attorney is capable and equipped with the right skills and knowledge, also cite the law, regulations, policy memoranda, guidance letters, legislative history, adjudicator field manual, bar association liaison minutes or any other source of applicable legal authority that establishes eligibility under the given facts. It is crucial to describe why each factoid of proof is relevant under the law, and demonstrate why “yes” is the ONLY factually and legally proper answer.
Use graphics, pictures and visual material. Boring, careless or poorly evidenced writing pains and perturbs the reader. Bright, logical, lively, grammatically correct, stylish and persuasive writing pleases the reader. Text alone, however eloquently and exquisitely presented, may fail to make the desired impact. Eligibility under the law is often more readily established if graphical images and links to web-based materials support the messaging of the text-based submission. Humans are visual. Personally, I absorb better with pictures and images. The most likely way to enliven interest and avoid an RFE is to awaken an otherwise indifferent adjudicator who has been reviewing hundreds of pages of multiple O1 petitioning papers, and provide compelling overt and subliminal reasons to approve the case. This is the reason why I like to urge applicants to work on their portfolios to make it look professional and appealing. Adjudicators are not judging the artistic merit of an artist’s portfolio, and they’re main objective in looking at a portfolio is to gather additional evidence that the applicant actually worked on the projects, but certainly, a portfolio that is enticing to look at may help towards forming their overall impression of the O1 petition.
Humanize the case through heartfelt and authentic storytelling. Contrary to some immigration lawyers’ perceptions, adjudicators are actually human. While examiners may be more focused on behaviors that reward them personally such as reporting suspected fraud, way down deep, they may just be moved to identify with the acute human condition. If the adjudicator can be encouraged to see the applicant as a deserving human being, rather than just another file to be acted on before the end of a work day, maybe, just maybe, an RFE will not be sent, but an approval notice instead. It is worth the extra effort. In the submission papers, try to weave a story about the consequences of a “yes” or “no” decision to your client and to the country. Even adjudicators prefer to hold up their heads by doing the right thing governed by moral precepts of human decency rather than just adding another notch on their life-destroying revolver.
Be zealous. Make a respectfully firm stance in the RFE response and stand up by wielding the tools of the law and language skillfully to achieve a just outcome, and there is less of a chance that a thoughtless or unwarranted outcome will come your way. In the face of one, make sure to fight on till the end.