We all know how that story will end. Best case scenario, the attorney would receive a condescending 11-page love letter from USCIS (A.K.A. “Request for Evidence”) demanding every document under the sun related to their client’s business. The RFEs often go for pages without mentioning any type of legal authority, or if they do, the authority is not germane to the request. If the experienced attorney compared the documents and evidence in the RFE to the statute and regulations, they would be at a loss to understand what authority the agency is relying on for this information.
For those working in business immigration the above scenario has become routine. We have seen the agency move the standards and raise the hoops clients must jump through in order to get petitions approved.
The business immigration bar became adept at predicting where the agency will move the hoop, so they could tell their client where to jump with each new petition.
If they guessed wrong, or if USCIS moved the hoop at the last second (ala Lucy and Charlie Brown’s football), they could always refile and have a very good chance of making it through the hoop on the next try.
Times have changed. Refiling has lost its appeal. Not only has the agency intentionally slow rolled the adjudication of petitions so that denials are received when the beneficiary has lost status, but the agency in general is acting as vengeful and erratic as a jilted ex-lover who quit taking their anti-psychotic meds.
The business immigration bar has to stop accepting the role of circus animal, jumping through hoops for the agency’s amusement.
The bar needs to turn the tables on the agency and go “Siegfried and Roy,” and fight back.
So, how do we as a bar do this?
When you respond to an RFE concede nothing. Don’t accept that the agency has authority to demand evidence. Every business lawyer has disagreements with the way USCIS applies the law.
In your RFE response push back. Tell them they are exceeding or violating the law and explain why.
Is USCIS’s application of Employer Employee Relationship contradicting DOL’s regulations and USCIS’s regulations? Tell them and make them cite to a statute or regulation that justifies their demand.
Is USCIS’s application of specialty occupation absurd and contradicted by the statute? Tell them why.
Is USCIS’s application of the EB2/EB3 ability to pay requirement absurd? Tell them how they are wrong.
Is USCIS authorized to approve H-1B visas for less than the period requested by the employer? Tell them why they aren’t allowed under the statute and regulation.
The list goes on and on.
The agency is painfully aware of how weak many of its decisions are, and that they will not stand up in court. Right now the agency is counting on enforcing its crazy rules and not having to be held accountable in court.
The small number of employers who do sue usually end up getting their petitions approved before the cases gets to the judge, thus ending the lawsuit.
But you should not have to go all the way to court to make the agency follow the law. Let them know early, in your petitions and RFE responses, that you are headed to court if they misapply the law.
Anecdotal reports are coming in confirming that holding the agency’s feet to the fire, and using aggressive legal arguments in RFE responses is a successful strategy.
Even if the agency decides to defend a decision in court, by forcing them to explain their rationale you have locked them in at court. DOJ cannot change it, or explain the decision on a new rationale. They are forced to defend the rationale in the decision. It is always better for force DOJ to defend the agency’s poorly reasoned legal decision, than to let them create a post hoc rationalization that looks and sounds better.
Start early, format your petitions, and use terminology consistent with litigation. Litigation attorneys produce documents for opposing counsel and sequentially number everything using “Bates Numbers.” Adobe has a way to automatically insert Bates numbers to documents and it is easy to use.
Consider creating a consistent footer that indicates you are starting your case with an eye towards litigation. Starting with the first page of documents submitted to the agency, every page should have a footer that looks something like:
Admin Record: Company H-1B obo Employee
000001 (Bates page number)
When you respond to the RFE, continue that footer on your documents, picking up at the next page number like this:
Admin Record: Company H-1B obo Employee
0000291 (hypothetical Bates number)
Not only does this tell the agency you have oriented your business to fight issues in court, it also gives you an easy way to cite to evidence.
Including Bates numbers also forces the agency to be more precise when rejecting your evidence. Keep in mind the agency is required by law to consider all evidence and explain its decision rejecting evidence. When the file consists of hundreds of unnumbered pages it is difficult if not impossible to precisely reference and discuss evidence in the record. The agency has the habit of making general statements dismissing entire categories of evidence (“the letters included do not show….”)
When you create and apply a consistent numbering system, and cite and discuss evidence with precision, the agency will be forced to do the same. This small thing makes it harder for the agency to deny your petition. They actually have to go through and precisely discuss and explain why they dismissed each document individually. This takes effort, and gets in the way of making their quota of denials for the day.
The agency has devolved into a full-blown circus. Its time for the business immigration bar to scare the clowns back into their tiny car. By structuring your petitions and RFE responses with a clear eye towards litigation you will let the agency know you are crouching to attack. If they accept the challenge you will be in a stronger position to beat them in court