[Blogger's Note: Prolific and always astute Karin Wolman, lawyer extraordinaire in immigration matters involving artists, entertainers and others of superlative talent, once again offers a thoughtful and thought-provoking assessment ("with welcome edits by Stacey A. Simon") of the clash of the creatives with the hard realities of modern-day immigration law and practice. Grimace and enjoy.]
The Extraordinary Immigration Tango:
One Step Forward, Two Steps Back
By Karin Wolman
There is a strange dance of duality going on in immigration law and policy, where all sides insist that the U.S. welcomes the world’s best and brightest talent, despite plenty of evidence to the contrary. The President recently acknowledged the need for reform in his State of the Union address, when he said, "real reform means fixing the legal immigration system to cut waiting periods, reduce bureaucracy, and attract the highly-skilled entrepreneurs and engineers that will help create jobs and grow our economy."
The Director of U.S. Citizenship and Immigration Services (USCIS0 Director Alejandro Mayorkas issued a public message in 2012 which began:
Throughout the past year, USCIS has placed significant focus on advancing one of our immigration system’s foundational goals: promoting America’s economic prosperity. On numerous occasions, we gathered feedback on how to best maximize the potential of current immigration law to create jobs for U.S. workers, and this feedback greatly informed our actions. As a result, we have made significant progress in a number of areas of interest to stakeholders related to employment-based and high-skilled immigration.
This charm offensive is at odds with what immigration practitioners and US employers experience every day with respect to how their petitions are treated. The culture of "No" continues, especially for persons of extraordinary ability, where examiners grasp at straws or fabricate any excuse to deny or dismiss entire categories of evidence presented, or summarily deem them without merit.
USCIS periodically releases employer bulletins, policy memoranda, Request for Evidence ("RFE") templates, and updates to the Adjudicator’s Field Manual. These "clarifications" of the adjudication standards are typically already in use when published in draft form, making the comment period something of a charade. The problem with implementing draft RFE templates and interim rules is that they often include novel requirements or try to resurrect requirements that the Service has unsuccessfully attempted to implement in the past, which are wholly unsupported by the law – in addition to offering guidance that may mislead examiners or prompt them to apply incorrect standards. Sadly, this has happened again with the recent publication of proposed draft Request for Evidence (“RFE&rdquo Templates in the O-1 and O-2 visa categories, posted by USCIS for public comment from January 22 – February 5, 2013, but plainly in use by adjudicators already.
The American Immigration Lawyers Association has already published formal comments to the recent proposed RFE templates, so I offer here a few examples from these templates that are, at best, misleading to adjudicators, and at worst, just plain wrong:
- In the RFE template for O-1A aliens of extraordinary ability in sciences, education, business or athletics, the section challenging awards or prizes of lesser national or international significance [one of their eight criteria under 8 CFR 214.2(o)(3)(B)(i)] quotes and distinguishes this standard from the higher standard allowing evidence of a one-time major, internally recognized award [at 8 CFR 214.2(o)(3)(A)], but by using the identical language, it tempts hasty examiners to misapply the higher standard for a one-time award and to improperly dismiss as irrelevant or insufficient any professional awards or prizes that are not “a major, internationally recognized award.”
- The RFE templates for O1A cases in sciences, education, business or athletics, for O-1B arts cases, for O-1B film and television cases, and both RFE templates for O-2 support personnel, all include, under a section relating to peer advisory consultations, the mistaken assertion that a consultation must state “whether the petition requires the services of an alien of extraordinary ability.” Such a requirement was acknowledged by Legacy INS as unsupported by law nearly two decades ago, in the preamble to the final O & P regulations, which noted: “After careful consideration, the [Immigration and Naturalization] Service [the legacy immigration agency preceding USCIS] agrees that there is no statutory support for the requirement that an O-1 alien must be coming to the U.S. to perform services requiring an alien of O-1 caliber. As a result, this paragraph has been deleted from this final rule.” See 59 Fed.Reg.156, pp.41818, 41820 (Aug. 15, 1994). Even if there were such a requirement for O-1 aliens, it would never apply to O-2 support aliens, who are not required to possess extraordinary ability in their own right, but must show the essentiality of their services to the O-1 principal alien.
- Under quite a few regulatory criteria, the proposed RFE templates give an adjudicator the option to state, “You did not submit evidence for this requirement. You may still submit evidence to satisfy this requirement.” Sadly, this language encourages time-pressed adjudicators to overlook or ignore evidence and then simply claim that it was not included in the petition. It is now a frequent occurrence for an RFE to state that evidence in support of a specific criterion was not submitted, when it was in fact included in the initial presentation, was itemized in an exhibit list, was referred to or quoted in the petitioner’s supporting letter, and its relevance to one or more regulatory criteria was explained in the attorney’s cover letter.
- In their defense, USCIS adjudicators are given very little time to review each petition (only 10 to 15 minutes per case, by some accounts). They are under considerable pressure to meet production goals, they do not control mailroom contractors who may discard exhibit lists and cover sheets, and they undergo no supervisory review when formulating and sending out Requests for Evidence.
- However, it seems they face no adverse consequences at all for claiming that evidence wasn’t there when it was. Due to erroneous claims of this kind, petitioners face unnecessary delays and attorneys have to duplicate their work, re-explaining previously-submitted evidence. The examining officers themselves have to spend much more time reviewing the response to an RFE than they would have had to spend reading the initial petition carefully and approving it the first time around. To fix this, USCIS could allot adjudicators a bit more time to review each case, remove incentives to generate RFEs, and require supervisors to review draft RFEs before they are sent out. The mass-production model currently in place does not lead to accuracy or efficiency in reviewing petitions for a visa category as diverse as the O-1.
USCIS is to be commended for its efforts to bring some predictability and consistency to adjudications in this area long plagued by erratic decisions. However, the design of RFE templates should not be viewed as an opportunity to make up new rules or resurrect dead ones, nor should the existence of options in a template give officers free rein to make misstatements that create wasteful, duplicative work for themselves, for the petitioner and for counsel, and that make it costlier and slower for US employers and agents to sponsor the top talent they need.