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  • Article: RFE Strategies for O-1B Cases By Elektra B. Yao, Esq.

    RFE Strategies for O-1B Cases

    by


    All immigration attorneys hate the dreaded Requests for Further Evidence (RFE). Current RFEs include boilerplate language, a misapplication of the law, and a total disregard for the documentary evidence to prove the evidentiary criteria.

    It is important to empower the client by presenting the various options to ensure that the client understands that RFEs are not a reflection of the strength of their case, but sometimes they are issued because of the lack of training of the immigration officer, the rapidity in which the immigration officer has to adjudicate, or because of the immigration officer’s misunderstanding of the law and the legal principles of immigration law.

    As frustrating as RFEs may be, immigration attorneys and their clients have options:

    SCOPS ( Service Center Operations) :

    A SCOPS email is an email, which concisely outlines the evidence that USCIS ignored, USCIS’s misapplication of the law, and includes some case law to bolster legal arguments. This tactic is utilized to encourage USCIS to issue an updated RFE. However, there is no guarantee that USCIS will issue an updated RFE or even respond to the SCOPS email. However, a good rule of thumb is to wait at least one month before beginning to gather evidence, as USCIS may be slow to respond.

    In the email, it is also important to remind USCIS of the proper standard for administrative proceedings: As the Service is well aware, the proper standard for most administrative proceedings, including O1 visa petitions, is a mere more likely than not "preponderance of the evidence" (11.1 (3) Burden of Proof and Standard of Proof, Adjudicator's Field Manual (AFM).) AFM Section 33.9 (1) clarifies the lesser standard by which artists are to be held in these petitions, stating, "USCIS has interpreted the term ‘distinction’ as it relates to O1 artists and entertainers to be identical to the prior H-1B standard for prominent aliens."

    A SCOPS email is sent to: scopsrfe@dhs.gov

    The email subject line should include language similar to the following: Supervisory Review Request- I-129 (RFE VSC) and/or the petition’s receipt number.

    WITHDRAWING THE CASE AND REFILING AT A LATER DATE:

    One option would be to withdraw the case and file at a later date with new evidence and filing with or without premium processing (depending on how the initial case was filed).

    The risks with this are:

    · The Beneficiary may not have new evidence;

    · Withdrawing the case may leave the Beneficiary out of status;

    · USCIS may just reissue a similar RFE;

    · The Beneficiary may incur additional filing fees;

    · And more.

    The case should be withdrawn closer to the RFE due date, just in case USCIS decides to issue an updated RFE based on the SCOPS email.

    SUBMITTING THE RFE RESPONSE:

    If you decide to submit the RFE response, give yourself ample time to strategize and develop a game plan. Carefully read through the RFE notice to assess the inconsistencies, misapplication of the law, or incorrect standard applied.

    Successful RFEs tend to:

    · Re-argue previously submitted evidence;

    · Include new evidence; and

    · Include case law to educate the immigration officer.

    RFEs are time consuming and demoralizing. However, with effective planning and strategizing they can be successfully overcome.


    About The Author

    Elektra is the founder and principal attorney at The Law Office of Elektra B. Yao a full service, comprehensive immigration and general practice law firm. Ms. Yao is admitted to the New York Bar and she practices U.S. Immigration and Nationality law and Deportation Defense in all jurisdictions of the United States of America. Ms. Yao earned her Bachelor’s Degree in Communication Arts from Marymount Manhattan College in NYC in 2008 and earned her Juris Doctor from Lewis and Clark Law School, a nationally ranked, top-tier law school in 2011. In 2010, she studied in London under Loukas Mistelis, the Professor and Director of the School of Arbitration at the prestigious UK law school Queen Mary University. Ms. Yao also studied at the University of Beijing Law School, the leading Chinese law school, where she earned a Certificate in Chinese business and civil law; along with studying at the prestigious Sorbonne University in Paris, France and in Florence, Italy where she earned Certificates in Comparative Law. Ms. Yao was also invited to study Eastern European Law at Eotvos Lorand University, the best law school in Hungary. She has also completed all of the coursework for a Master’s in Law in European and Spanish Law from the University of Salamanca. She holds multiple Certificates in Italian and European Immigration Law and Policy. Ms. Yao spent several years working for leading boutique immigration law firms where she developed her expertise in employment based and family based immigration law. Ms. Yao is highly experienced and proficient in US and EU Immigration Law and Policy. As such, Ms. Yao has provided her immigration legal services to businesses and individuals in the US, Italy, Spain, and Cote d’Ivoire. Ms. Yao has lived, studied, and worked internationally in the US, the EU, and Africa and she is fluent in French, Italian, Spanish, and English.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

    Comments 1 Comment
    1. ImmigrationLawBlogs's Avatar
      ImmigrationLawBlogs -
      Some employment based RFE's that I have received have been openly biased. One of the most egregious ones, which I received several years ago, was not actually an RFE , but a Notice of Intent to Revoke, in an EB-1 extraordinary ability case. In that case (among many other indications of bias and open refusal to consider favorable evidence) the NOIR author refused to consider a first prize that the applicant had one in her field from a long standing, well known US organization which had previously awarded prizes (in unrelated fields) to two of the most famous women in all of American history.

      The USCIS examiner who authored the NOIR (whom I eventually was able to identify by name and to determine that he was in fact male, as I had obviously suspected for the following reason) disregarded my client's prize on the grounds that it was awarded by a women's organization and therefore somehow didn't count, in his view. Eventually, after a long and difficult battle, that case was finally resolved favorably.

      There is good reason to suspect that many of the hurricane of H-1B RFE's received this year may also be motivated by anti-immigrant bias in general, in keeping with the basic outlook of the Trump admistration, even if the bias is (at least slightly) better concealed in most instances than it was in the example I gave above. How to respond to an openly unfair or biased RFE has always been a problem, and will no doubt be an even bigger one in the coming years of the Trump administration.

      One additional strategy, besides those which the author mentions above, is to request premium processing at the time of answering the RFE, assuming that the case was originally filed as a regular processing case. That would assure having the case looked at by a different USCIS examiner from the one who issued the RFE.

      Roger Algase
      Attorney at Law
      algaselex@gmail.com
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