YoU SCIS must be kidding me.

Saturday, August 21st, 2010
By: Jonathan MontagJ.D.

I remember a long time before I ever got involved in law, never mind immigration law, I heard a critique of the field – all immigration lawyers do is fill out forms and send them in for you. I remember, too, the words of a relative who “kindly” explained to my child that lawyers charge people lots of money to do simple things. Like almost anything that is said, it is sometimes true. In the case of immigration law it is sometime true but very often not. When dealing with immigration law, beyond figuring out what to do and how to do it and whether there is anything to do at all and the probability of success, there is another dimension – the fact that those that administer the laws often do not know what they are doing. While this may seem like an unfair criticism, it is not.

The people who administer the system at USCIS are dealing with a fairly complex set of laws. Layered on top of statutes are regulations, and on top of that are operating rules and policy memos.  New regulations and new policy memos come out all the time. USCIS is currently engaging in a process of compiling and consolidating them so there will be clarity in the law and its administration. On top of that are court decisions in all the thirteen different U.S. circuit courts of appeals and sometimes decisions of U.S. district courts.  Now a lawyer has all kinds of resources and devotes all kinds of times trying to keep up with these changes and looking things up to make sure things are what he or she thinks they are for his or clients. Lawyers read updates to the law continuously – in the past by weekly magazines and faxes – and now by email and also specialist website (and informative blogs). Probably the biggest challenge immigration lawyers face is keeping up with all the changes.

Now, the clerks and adjudicators and administrators at USCIS for the most part are not lawyers. They are civil servants. They don’t spend considerable time each day reading updates and scouring new cases. They clock in, do their job, work their 40 hours a week, and do what people do – raise their kids, cook dinner, volunteer at church, join clubs, play softball…. They depend on their employer to inform them and train them. I remember a half a year ago I was dealing with obtaining permanent residence for a client who had AIDS. In the midst of the process, President Obama made a speech announcing that AIDS would no longer be a bar to adjusting status. I figured that this news, headlines in all the newspapers, would quickly be known and implemented by USCIS. Despite the President’s specifically addressing a specific change in the law in a field that USCIS workers administer every day in a widely broadcast speech, when I presented this change in the law to USCIS, they had no idea what I was talking about and instead referred me to a policy memo of a few months earlier. Keeping up day to day is obviously not what they do best, and understandably so.

In reality, sometimes the job is not a whole lot more than filling out forms and sending them to the right place. And sometimes knowing what form and what place is not that tricky. However, there is another wrinkle – dealing with what USCIS does with the forms when they get them. In the last three weeks the following three things happened.

Number 1. A client needed to extend a period of authorized stay in the United States. Not too difficult. Figure out if the client is allowed to extend status. Fill out the right forms. Figure out what supporting documentation is needed, assemble the documentation, and figure out where to send it. And one more thing – get it filed before the current period of stay expires. I did all the steps. Mission accomplished. Then, after I mailed it, USCIS announced that starting in a week, the application would have to be sent to a different address – in this case no longer to the California Service Center but instead to a “lockbox” in Texas. Not to worry, my package would be at its destination long before the new mailing address came into force. Then I track the application to make sure it reaches the destination. It reaches the California Service Center – a week before the new “lockbox” comes into being. But then the package takes off – a hijacking I am following on Lojack it seems. The next day it is in Wagon Wheel, Texas, and the day after that it is delivered to an address in Dallas. A few days later I get a receipt from the California Service Center. It seems that USCIS started forwarding mail to the new lockbox a few days before the announced date for its establishment. All well and good except for the deadline. So instead of doing meaningful things, I spend two hours finding the new mailing instructions, the USCIS announcement of the new address and the effective date of the change, and print out tracking records for the package – and send a letter with all this documentation to demonstrate to USCIS that the package was sent and reached its destination on time and only because of their actions contrary to their announcements was there deadline issues. Will USCIS acknowledge their error? I’ll let you know.

Number 2.  Also recently, a client needed a work card extended. It is an immigration court case, so one must send supporting documentation to show that the case is indeed in court. I filled out the right forms, assembled the supporting documentation with a cover letter explaining what we were doing and why and listing the supporting documentation. Soon thereafter I received a “Request for Evidence” asking for proof that the client is indeed in court. Did anyone look at what I sent? Did anyone read my cover letter? Not very likely. So instead of doing meaningful things, I re-assembled the requested documents and re-sent them with a new cover letter. An hour or more down the drain for no reason.

Number 3. And finally, just today, I received a “Request for Evidence” in another case. The client was applying for permanent residence under Basis A. (I won’t bore you with the specifics of the basis.) This basis requires sending a lot of evidence regarding residence in the United States. I assembled it and sent it – a small telephone book size load documentation – with a cover letter explaining what Basis A was and how our documents met the requirements. The “Request for Evidence” I received stated, essentially, “to be eligible under Basis B you need to send the following documentation. You have not done so. You have 87 days (Where does that number come from?) to send this documentation or your case will be denied. Obviously, the adjudicator did not read the cover letter and had no idea what Basis A was. So, on a sunny Saturday, instead of doing meaningful things or fun things, I spent a couple of hours writing and mailing a letter explaining how everything the requested was not part of Basis A and that the Request for Evidence was in error.

USCIS is moving to a lockbox system. They believe it is more efficient to assemble all of a certain type of application in one or two places and then send them from there to other offices for adjudication. Thus, a permanent residence application of a person living in San Diego is mailed to Chicago, forwarded to Missouri and then sent back to San Diego. An extension of status request is sent from San Diego to Dallas and then back to California. The carbon footprint of an application must be staggering.

Since this is the waive of the future, I propose a new USCIS Lockbox. Practitioners should send any Request for Evidence that is patently in error or asks for material already sent to a Loackbox. USCIS can investigate if the Request for Evidence indeed should not have been sent. If the request was sent through incompetence (I realize everyone makes mistakes.) the employee who sent it is afforded additional training, or if untrainable, dismissed. The attorney, or whoever answered the Request for Evidence, gets an apology note and a gift certificate redeemable at a federal building cafeteria. I bet you there will be lots of free lunches. Posted August 22, 2010.



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