It's Groundhog Day in Las Vegas, as immigration attorneys convene for the first day of the annual conference of the American Immigration Lawyers Association -- for many of us, regrettably, a victory of hope over experience. This is not intended as a smackdown of AILA. On the contrary, AILA has assembled an all star cast of speakers and is offering a collection of cutting-edge immigration topics.
Rather, the reference to the film is more a commentary on the annual uttering of unhelpful, straight-faced responses by most (but not all) of the agency officials on the dais to the pressing concerns of the lawyers on behalf of their clients.
As regular AILA conference attendees can attest, the typical government representative's spiel involves an unctuous appreciation of the importance of meeting with lawyers to share information. This is followed by the recognition that while there are problems, the situation is not as bad as it once was. The recitation then ends with the assurance that a regulation or policy memorandum addressing and resolving the lawyers' concerns will be issued in the near future, but meantime the government representative is not at liberty to suggest what the new regulation or memorandum will say or when it will be published. As the sage American philopher -- Yogi Berra -- would say, if he were here: "It's like déjà vu all over again."
The furor du jour on the first day of the conference is about the proliferation of government requests (mostly from U.S. Citizenship and Immigration Services [USCIS]) for additional evidence (RFEs). The RFEs often run to several pages. A comparison of the RFEs reveals that many are boilerplate demands made without reference to the facts in the particular case. As reported today at the AILA conference, even publicly traded, long established, and financially sound companies are ordered to produce voluminous evidence proving their existence and viability or risk denial of their petitions.
The viral spread of extravagant RFEs is an effront to USCIS Headquarters policy (as reflected in a Feb. 16, 2005 policy memorandum):
A RFE [sic] is most appropriate when a particular piece or pieces of necessary evidence are missing, and the highest quality RFE is one that limits the request to the missing evidence. Generally it is unacceptable to issue a RFE for a broad range of evidence when, after review of the record so far, only a small number of types of evidence is still required. “Broad brush” RFEs tend to generate “broad brush” responses (and initial filings) that overburden our customers, over-document the file, and waste examination resources through the review of unnecessary, duplicative, or irrelevant documents. While it is sensible to use well articulated templates that set out an array of common components of RFEs for a particular case type, it is not normally appropriate to “dump” the entire template in a RFE; instead, the record must be examined for what is missing, and a limited, specific RFE should be sent, using the relevant portion from the template. The RFE should set forth what is required in a comprehensible manner so that the filer is sufficiently informed of what is required.
As the first day of the AILA conference drew to a close, I bumped into a podcaster (Dan Kowalski, Editor of Bender's Immigration Bulletin). He noticed a chagrined look on my face and asked what was bothering me. Here then is my podcasted rant on unruly RFEs, the unsupervised adjudicators who issue them and the agency officials who defend the practice from the podium rather than uphold their own headquarters policies.