Bloggings on Immigration Law

by Roger Algase

While the issue of unauthorized immigration continues to dominate the headlines, especially with regard to the fate of the ten of thousands of young DREAMER's who have applied for temporary protection from deportation, life goes on for the educated professionals who are applying for benefits on the legal side of immigration. For many of these, the letters RFE (Request for Evidence) are just as dreaded as are the letters NTA (Notice to Appear) for people who do not have any legal status. 

However, while there has been some well publicized alleged slowing down of this administration's rush to deportation for at least a few lucky beneficiaries of DHS Prosecutorial Discretion and Deferred Action initiatives, the Obama administration continues to turn a cold shoulder to many hard working, educated people who are doing their best to follow the law and to play by the rules. At least some of them might have good reason to think that RFE means "Refused For Ever".

Refused For Ever certainly seems to be the spirit in which many RFE's are issued by immigration examiners, not only because of the antagonistic and negative tone that many of them use in drafting RFE's, but also because of the casual and selective way in which the rules are applied in these superficially innocent requests for additional information or documentation. 

Indeed, another meaning for RFE might be "Regulations Forgotten Easily". I will mention one recent example that has crossed my own desk. This case involved I-485 applications for Adjustment of Status (AOS) by a professional worker with an approved Labor Certification and I-140 immigrant petition (and his derivative wife), who had both been waiting patiently for several years for his priority date to become current.

When it finally did, and their AOS applications was filed, they both received RFE's asking for proof that they had been in legal status for the entire time that they had been in the US.

Since both of them have always been in legal status without any interruption, there is no difficulty in providing the requested proof covering their entire time in the US. However, the examiner who issued the RFE seemed to be blissfully unaware that both applicants had recently made a trip overseas and re-entered the US in legal status, which they have continued to maintain at all times since, as was apparent from the I-485 applications and submitted supporting documents

Therefore, the husband and wife were both eligible to adjust status under INA Section 245(k). It was not necessary to show that they had maintained legal status at all times prior to their last entry.

While the fact that the examiner who issued the RFE ignored or did not seem to know about this important part of the law does not put this case in any serious danger of being denied, it has held up green card approval for a greater or lesser amount of time without any valid reason. Other examples of unjustified, or even frivolous, RFE's will follow.

About The Author

Roger Algase is a graduate of Harvard College and Harvard Law School. He has been practicing business immigration law in New York City for more than 20 years

The opinions expressed in this article are those of the author(s) alone and should not be imputed to ILW.COM.