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USCIS Turns Simple Request for Extension of Time Into Epic Saga. By Roger Algase

Rating: 3 votes, 5.00 average.

Update: August 23, 7:27 am

On August 21, I received an email message from the Texas Service Center stating that I will receive a written reply to my request for an extension of time to answer a notice of intent to reopen an I-140 extraordinary ability (EB-1) petition, which the TSC had previously, approved, then revoked, and has now reopened again in order to permit my client to submit more evidence. I hope and trust that, given the complicated history of this case and nature of the evidence needed in order to respond to the notice (during a time when the petitioner also happens to be outside of the United States temporarily) the request for additional time to answer, which is permitted by applicable regulation, will be granted.

I will keep readers updated about this case, which had already raised other issues regarding due process and fundamental fairness in petition adjudications previously.

Needless to say, I am looking forward to receiving the answer to my request for extension of time to answer with eager anticipation.

Update: August 16, 6:40 am

My apologies to everyone who appreciates classical literature for misspelling Charybdis on the original version of this post. The following is the corrected version:

One of the best known stories in all of Western literature is Homer's great epic poem: the Odyssey, whose hero, Odysseus, is delayed for 20 years by an almost endless series of obstacles in returning from the Trojan war to his kingdom in Ithaca. While I do not have any knowledge which would would indicate that USCIS includes classical literature as a required segment in its officer training programs, the attitude of delaying or obstructing even the simplest requests from its "customers" for as long as possible is not at all unfamiliar at that agency. One might even think that the Odyssey was part of its officers' manual.

I recently received a notice from the USCIS Texas Service Center reopening an I-140 petition which had previously been approved (more than two years ago) and then revoked. Having this petition (for EB-1 extraordinary ability classification) reopened under circumstances which should greatly increase chances of receiving a fair final decision based on all the evidence, was itself a battle which may have had some points in common with Homer's other great epic, the Iliad. But that is a different story, which I have written about in other posts relating to this same case. This post is about Odysseus, not Achilles.

The TSC notice stated that it was reopening its previous I-140 revocation decision in order to give the petitioner a chance to submit more evidence showing that she had met the requirements for the above classification. I will not discuss the details here, except to say that gathering the evidence is a major undertaking which will require additional letters and other supporting documents from the US, Canada, Europe and Japan, to supplement the more than 200 documents which were previously submitted and which had led to the petition's being approved more than two years ago, before being revoked earlier this year because the TSC apparently changed its mind about how to interpret the applicable legal requirements.

(To put it more simply, one might say that the TSC, following the example of Bill Clinton, had revoked the original I-140 approval "because it could". or that, paraphrasing John Kerry, the TSC was "for the petition before it was against it".)

To return to the topic, the decision to reopen the petition and ask for more evidence, among other things, quoted 8 C.F.R. Section 103.5(a)(5), which in relevant part reads:

"(ii) Service Motion with decision that may be unfavorable to affected party. When a Service officer, on his or her own motion, reopens a Service proceeding or reconsiders a Service decision, and the new decision may be unfavorable to the affected party, the officer shall give the affected party 30 days after service of the motion to submit a brief. The officer may extend the time period for good cause shown." (Original italics.)

While the above regulation is phrased in terms of a "brief", the above decision made numerous references to additional evidence which the petitioner would need to submit in order to show that she was qualified for the requested benefit. Therefore, the decision was equivalent to a Notice of Intent to Revoke the petition (NOIR), in which an extension of time may also be granted at the discretion of a Service officer, and it is reasonable to interpret the word "brief" in the above regulation as including additional evidence.

The above is in contrast to a Request for Evidence ("RFE"), which is governed by a different regulation which does not allow for an extension of time. No doubt for this reason, most RFE's provide 90 days to answer. The above decision provided only 30.

With the above as background, now let the Odyssey begin:

Shortly after receiving the above decision, I sent an email message to the TSC's customer service section addressed to a young woman who is in charge of asking and responding to inquiries there. For privacy reasons, I will not mention her name, but I can say that she is one of the friendliest and most helpful immigration information officers I have encountered in my entire immigration law practice going back more than 30 years. If all immigration officers had her willingness to help people calling and emailing in with questions about their cases, our work as immigration lawyers would be a good deal easier.

Moreover, this same information officer had helped me at the time of the original NOIR in this case, when I first came in as the substituted attorney in the I-140 petition (Oy Veh!, as they say in Law Latin - see below).

Specifically, she had sent my request for an additional extension of time to answer the initial NOIR (issued in October, 2013), to a TSC supervisor who had responded almost immediately (with a denial, but at least I got an answer - a previous extension had already been granted before I came into the case.)

I thought that it would be easy to get a fast up or down answer from a TSC supervisor this time too, but this time it was not so easy. More than a week after making my request, I called the TSC customer service section, and spoke to the same ever-friendly and considerate information officer a couple of times. She said that this time, there had been no response from an officer or supervisor to my request, and she could not tell if there would ever be a response at all.

She advised me to send the extension request in writing directly to the officer who had issued the latest decision (whose ID number was included), but said that it would take at least a week, if not longer, for my letter to reach him/her. Of course, I am following her suggestion, but my experience in sending letter to USCIS Service Centers up to now has been more like that of astronomers looking for light to come out of a black hole.

However, she also suggested that I call the general USCIS customer service number, (800) 375-5283, to ask for an extension of time to answer by phone. She said that was the proper way to do this.

This sounded quite reasonable, especially since, before I came into this case, the petitioner had contacted this number directly (with the help of a friend, not an attorney) and had no problem in receiving a 30 day extension to answer the previous NOIR in this case. Now we come to the story of Scylla and Charybdis in the Odyssey, updated courtesy of USCIS.

Based on the TSC information officer's suggestion, I called the USCIS 800 customer service number to ask for an extension of time. I was told that my call would have to be "escalated" to the level handling attorney inquiries. After transfer, I was advised by voicemail that there would be a considerable waiting time to speak to an officer at this level, but I could arrange to be called back.

I elected to use this option, but as soon as an officer finally called me back, the phone was cut off. I went through this procedure a second time, and the phone was cut off again as soon as an officer called me back.

The third time I called, I finally got to speak to a USCIS customer service officer at the attorney inquiry level, but I was told that my G-28 attorney's notice of appearance was not in the computer system (which still showed only the G-28 from a previous attorney in this case) and that I would have to work this out with the TSC. I explained that my G-28 had been on file with the TSC ever since late 2013 when I first came into the case and I had been receiving messages and notices from the TSC as the attorney of record ever since. (In fact, I have a good-sized collection of these, all addressed directly to me.)

The USCIS customer service officer said that the problem probably came up because when I filed my G-28, I must have done so in connection with answering the NOIR (in January, 2014 - all of which papers were subsequently lost by the TSC and had to be replaced by duplicates in April, 2014 with the help of the office of New York Senator Kirsten Gillibrand, for whose assistance I am very grateful) and if a G-28 from a substituted attorney is filed in the same envelope along with an answer to a service notice, it will not get into the USCIS computer system. Therefore, I needed to send yet another G-28 to the TSC, (which already has me listed as attorney of record) in a separate envelope. Who knows when that will ever be acted on?

Therefore, instead of going back to the Scylla of the TSC, I decided to call Charybdis, namely the USCIS 800 number, a fourth time to see if could talk with a more helpful officer there.

Finally I got to speak with an officer who, to his credit, seemed to understand my problem and was willing to spend a good deal of time on the phone (and with his supervisor) seeing if there was a way that I could be recognized as the attorney of record in the USCIS customer service office for the purpose of making the extension request even though it was not in the computer system. His guess was that this omission may have been the fault of an outside contractor.

Moreover, neither this officer nor his supervisor seemed to understand the difference between a Service motion to reopen or an NOIR, which allow extensions of time to answer, and an RFE, which does not allow for an extension, as mentioned above. But even after I explained this, the answer was the same: I would have to apply for the extension directly to the same TSC which had already told me that the correct way to do this was to call the USCIS 800 number.

Some readers may ask: why not just put my client, the petitioner, on the phone directly with the USCIS 800 number officer and let her make the extension request?

The only problem with this is that the petitioner is out of the US and unable to reach the USCIS 800 number. By the time she returns, the 30-day deadline to answer will have almost passed.

I will keep readers advised about continuing developments in this ongoing epic saga. I can only hope that it will not take as long for USCIS to grant the extension request as it took Odysseus' wife, Penelope, to finish her weaving.

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Updated 08-23-2014 at 07:43 PM by ImmigrationLawBlogs

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  1. Retired INS's Avatar
    This story is better understood when one knows how new immigration officers are trained and the real world of immigration service centers. A good friend of mine was the first director of the Texas Service Center. It was a very small unit, which consisted of one supervisor and several adjudications officers, who were selected via vacancy announcements. Most of the adjudications officers were former Border Patrol Agents who wanted to get away from the Border and work regular day shifts, Monday through Friday. They knew nothing about the adjudications side of immigration so the new supervisor spent more time than had been originally planned to properly train the officers. She had been one of Baltimore's best adjudications officers and finally got everyone well trained. Unfortunately, because of the extra time training the former Border Patrol Agents, the new supervisor failed to meet the production expectations and was relieved of her supervisory duties. Keep in mind the INS was run by men at that time and loved to see women fail. She was replaced by a male supervisor who came in after she had finally trained everyone. The new supervisor was an idiot, but he benefited by now having a well trained staff who got the job done despite his lack of knowledge.

    Now, lets get to an important point of information about immigration basic training. New agents are taught to look for fraud. If they fail to find it, they must be doing something wrong. When an application is approved, the government is seen as the loser, and when an application is denied or delayed, the government wins. I was in immigration management for 29 years and constantly had to fight this stereotype with many officers.

    Before being promoted to management, I had spent several years doing marriage fraud investigations. I considered myself a success if I could prove beyond a doubt whether a marriage was good or bad. I only got upset with myself when I was unable to determine the bona fides of a marriage. My idea of success was not shared by many, they thought success only came if a case was denied.

    Immigration Service Centers never see applicants in person. Many are hired without ever serving in any other immigration officer capacity. Therefore, they lack an understanding of the problems immigrants face. It is easy to be tough on people when you don't have to look them in their eyes. Not long ago an employee I considered a problem employee was transferred to the Texas Service Center as a supervisor. On paper he may have looked good, but he had attitude problems. I had just retired and my replacement as office manager had not yet arrived, so the selecting official at the Texas Service Center was unable to inquire about this officer.

    Of course, there are many good employees at immigration service centers, but it is too easy to look at a paper application, which cannot defend itself, and act tough. Add to this the problem of having large numbers of contract employees who only work indirectly for the government, and the environment is ripe for bad decisions.
  2. ImmigrationLawBlogs's Avatar
    I commend RetiredINS for his candor and honesty in confirming that some immigration officers are trained in an atmosphere of bias against immigrants which many of us lawyers suspect exists but cannot prove. His comments about the eagerness of some immigration officers to look for fraud may also explain why, in the case I have been discussing, the precious adjudicator concocted a "fraud" finding out of nothing, and without giving the petitioner any chance to rebut this accusation in a decision which the TSC has now wisely and fairly vacated on its own motion.

    As for the specific issue of inability to get a response from USCIS to a simple request for an extension of time to answer a TSC notice which expressly states that such extension may be granted for good cause, I suspect that this is due more to bureaucracy gone wild than actual bias.

    For some reason, a G-28 notice of appearance in this case which I filed more than six months ago and which the TSC has accepted and acted on right from the start, has not made its way into the USCIS customer service 800 number system, which the TSC now claims is the only available channel for asking for an extension of time to answer the latest notice from the TSC.

    Why the TSC cannot grant its own time extensions without involving the 800 USCIS customer service number is incomprehensible to me.

    Since the 800 customer service people will not talk to me because of a failure by some unknown entity (outside contractor?) to update their system with my G-28, and since my client (whose English is good but not totally fluent) is out of the US and cannot speak with them directly, I have written directly to the TSC adjudicator who is now in charge of this case to ask for an extension.

    I can only hope that my letter makes it from the TSC's mail room to his/her desk before the current time to answer elapses.

    As an additional thought, I strongly suspect that the mindset which RetiredINS describes of regarding approval of any petition as a defeat for the INS/USCIS may have been behind the decision to revoke my client's I-140 B-1 extraordinary ability petition in the first place. After reading the TSC's original NOIR, the revocation decision, and the latest decision vacating the revocation but still arguing that there is insufficient evidence to show extraordinary ability and more is required, I cannot think of any other motive for revoking this petition that makes any sense.

    Roger Algase
    Attorney at Law
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