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Case Outcomes Simplified: How Much Discretion Does an Immigration Officer Truly Have

2013-11-25, BY WeGreened

We at Chen Immigration understand that the supposedly complex nature of an Immigration Officer’s discretion can become quite confusing and deeply frustrating, especially for the self-petitioner. Accordingly, unreasonable Requests for Evidence letters (RFEs) and Notice of Intent to Deny letters (NOIDs) appear to have become commonplace and a frequent practice among Immigration Officers who are dealing with an increasing demand and influx of immigrant visa petitions and a relatively limited supply of such. Herein, it is imperative, now more than ever, to recognize that the Immigration Officer’s discretion is not as ambiguous or profound as you may be led to believe. In fact, the Immigration Officer’s discretion is only one of the three primary components in case approval or denial, and in actuality, it is the most constrained among the three factors. These components include: (1) Credentials of the Petitioner and/or Beneficiary; (2) Argumentation strategies/skills employed by the attorney/petitioner within the petition package; and finally, (3) Discretion of the adjudicating immigration officer. Each of these components is dissected below in order to provide a contextual elucidation of the Immigration Officer’s discretion, thereby demonstrating the relative confines and limits of said discretion. These explanations and realizations should equip any petitioner or beneficiary with the proper knowledge and toolkit to combat unreasonable RFEs/NOIDs and ensure that one is not taken advantage of by Immigration Officers seeking to overstep their discretionary bounds.

Along the lines of Kazarian analysis, the Immigration Officer is granted discretionary privilege to a limited extent. We at Chen Immigration Law Associates have taken on many RFE cases from other law firms, where we felt as if the petitioner/beneficiary’s work was either poorly represented, or where the Immigration Officer had overstepped their discretionary privilege or misinterpreted the information presented in the case materials. For the purpose of evaluating discretionary privilege, we will focus this article on how each component of case preparation can limit the Immigration Officers’ discretion when handling the evidence included in the case materials.

1. Credentials of the Petitioner/Beneficiary

Understandably, one’s credentials (i.e. qualifications, contributions, achievements, etc.) in the field of endeavor are one of the most important facets in case approval or denial. They serve as the foundation for formulating petition strategies and argumentation methods, which in turn shape the Immigration Officer’s sentiments and discretion. Therefore, it is just as critical to comprehend what credentials are noteworthy from the standpoint of an adjudicating Immigration Officer as it is to gather and properly convey such credentials in the petition package. From our experience the most notable pieces of evidence are those which are intrinsically objective and unbiased, and those which amply demonstrate one’s influence on the field. In other words, items such as widely-recognized awards, fellow-level memberships, major media coverage of one’s work, editorial board duties, and top-tier wages in one’s profession, among others, are the primary items in one’s credentials which can serve to demonstrate one’s influence on the field as a whole in an objective and unbiased manner. Likewise, independent reference letters can serve as objective evidence to supplement one’s credentials. Although, these letters should exclusively affirm statements of fact, while elaborating on the significance of one’s work, detailing the specific implementation, commercialization, or citation attributed to one’s work. Without an adequate foundation of credentials, it is difficult to formulate appropriate strategies and tactical arguments for petition approval. Therefore, it is essential to develop and compile your credentials prior to seeking representation or self-petitioning. This is the easiest component of petition approval to control, and it is a deciding factor in one’s case outcome as the Immigration Officer is responsible for reviewing each credential as it is presented, and the burden of proof lies with the petitioner. We at Chen Immigration Law Associates always give honest evaluation about potentials clients’ credentials and suggest appropriate categories based on the comprehensive evaluations. We do not give false expectations about case approvals just to obtain a case. For free evaluation, send us your most updated CV, citation numbers/ notable achievements at: http://www.wegreened.com/Free-Evaluation

2. Argumentation Strategies & Skills

Equally important to the case outcome is the argumentation strategies and tactical skills employed by the immigration representative or self-petitioner. Due to the pertinent experience required to refine these skills, it is suggested that one seek legal representation prior to employing any of these strategies as to ensure they are employed correctly, thus bolstering one’s chances of petition approval. In layman’s terms, these strategies and skills are simply the most effective means of presenting and/or packaging one’s credentials. Such strategies and skills include but are not limited to: credential framework – framing one’s credentials to fit the category in pursuit; independent witness letter acquisition – tailoring objective references to fit the argumentation platform, while supporting the notion of one’s influence on the field as a whole; and cover letter formatting – customizing the petition letter to address each regulatory stipulation, while appeasing the Immigration Officer in regards to the totality, organization and precision of information presented, thereby complying with the statutory guidelines and providing Administrative Appeal Office decisions for comparative legal analysis. By providing all credentials in a clear and concise format, and through the utilization of optimal strategies and tactical skills, the Immigration Officer must give weight to past decisions and factual statements regarding one’s influence, thereby eliminating most opportunities for the Immigration Officer to apply his/her discretionary judgments, and abiding by the burden of proof necessary for petition approval.

3. Discretion of the Immigration Officer

As aforementioned, the vast majority of our recent RFE cases stem from two issues: (1) the original attorney failed to present the evidence in a clear, complete, concise, and/or convincing manner; or (2) the Immigration Officer overstepped the bounds of his/her discretionary privileges. Regardless of which issue we are confronted with, it is important to note that the Immigration Officer must always employ the appropriate regulatory considerations as mandated by USCIS and AAO guidelines [see: USCIS – Adjudicator’s Field Manual], while looking at both the pattern of evidence submitted and the evidence in totality – for example, as stipulated through the final merits determination in the second part of Kazarian analysis. Therefore, most RFEs we respond to ask for specific pieces of evidence, some of which are determined at the discretion of the Immigration Officer. Herein, as long as you are able to provide each piece of requested evidence, and subsequently present the evidence in a clear and concise format, abiding by the relevant legal regulations and guidelines, the Immigration Officer’s discretion is nearly eliminated. Of course, if the evidence submitted does not serve as qualifying evidence, then the Immigration Officer is again able to input his discretion into the final ruling. However, the most important concept to take away from this case is that despite the increasing plausibility of receiving an RFE or NOID from an Immigration Officer with stringent discretion, each challenge addressed in such letters may be overcome by responding to each challenge by presenting qualifying evidence in a clear and concise manner. Altogether, one must understand that although the Immigration Officer’s discretion may appear daunting and ambiguous by nature, their true discretionary bounds are relatively restricted and apply only to those cases where there exists some inherent or overwhelming lack of evidence, where again the Immigration Officer relies on the laurels of the passé clause, used frequently in RFE and NOID letters, stating “As always in these proceedings, the burden of proof rests solely with the petitioner.”

 


We are pleased to announce that North America Immigration Law Group has so far received over 7,500 EB-1A, EB-1B and EB-2 NIW I-140 approval notices. In 2015 and 2016, the approval rate is 97.9% for cases using our Approval or Refund® (money back guarantee) service and 96.9% for all cases.

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