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Dentists May Do Better Than Lawyers In Getting Answers From USCIS. By Roger Algase

Rating: 4 votes, 5.00 average.

Update, September 2, 9:12 pm:

I am glad to report that on September 2, I was finally able to speak with a USCIS 800 number customer service officer who was willing to fill out and transmit a request form in the case described below to the USCIS Texas Service Center relating to my request for an extension of time to answer a notice of decision. The decision in question involved reopening a previously revoked I-140 extraordinary ability petition, in order to allow the submission of more evidence of the petitioner's qualifications for EB-1 classification.

This was good news and a great relief. As described below and in a previous post, my (self-petitioner) client was caught in a Catch-22 situation between the TSC customer service center, which insisted that the correct way to ask for an extension of time to answer was by phone to the USCIS 800 number, and the officers at the 800 line, who said that they had no authority to process such a request and that only the TSC itself could handle it.

However my enthusiasm at finally, on my sixth try to that number (800) 375-5283, finding a USCIS 800 line customer service officer who was willing to put in a request for an extension of time to answer was somewhat dampened by the fact that the officer did not seem to have the slightest understanding of the reason for the request. Nor did he have a clue about the fact that the USCIS regulations allowed the petitioner to make the request, or what the actual status of the case was.

Normally, I try to stay calm when speaking with USCIS officers by phone, and over three decades of immigration law practice, I have developed a certain amount of skill in doing this, but this officer was so obtuse that our discussion quickly threatened to degenerate into a shouting match.

The officer apparently thought that the reason that I was asking for his help was because a case which had been filed more than three years ago and had been approved, reopened, revoked and then reopened again on the Service's own motion after petitioner had filed both a motion to reconsider and an appeal was "beyond the normal processing time".

Indeed.

This encounter reinforced my previous impression (see below) that training in dentistry might be more useful in dealing with both the USCIS 800 customer service line and the TSC officials themselves than training in law.

There are some exceptions to this, as I have mentioned in the past. I have found the TSC's own customer service staff members to be courteous, knowledgeable and willing to help. Unfortunately, they are not able to make decisions or take action themselves, but only to pass along requests to the TSC adjudicators or supervisors.

Persuading these latter officials to answer a simple request for extension of time to respond to a USCIS notice in a complex case with a complex history bears a strong resemblance, as I mentioned in my original post which follows below, to pulling teeth.

Here is my original post:

In my August 15 post (updated on August 23), I described the difficulty and frustration involved in trying to get an answer from the USCIS Texas Service Center and the USCIS 800 number customer service center for a simple request for an extension of time to answer a decision from the TSC.

As I described in that post, USCIS Turns Simple Request For Extension of Time Into an Epic Saga, the decision involved was based on a Service motion to reopen a TSC decision revoking an I-140 petition for EB-1 classification based on extraordinary ability. The revocation decision had raised serious issues involving fundamental fairness and due process which I have also described in previous posts.

The willingness of the TSC to reopen the case and take another, hopefully more objective look at the facts (with a different adjudicator) was welcome and commendable. However, the normal 33-day period of time to respond to the numerous issues concerning the self-petitioner's EB-1 qualifications raised in the decision to reopen was nowhere near enough to prepare a meaningful answer.

This was particularly true because my client (the petitioner) was out of the US for most of the month for various urgent reasons and was only able to return a few days before the deadline. It was also important to extend the deadline because of the complexity of the case, involving more than 200 pages of evidence already in the file in a case which was originally filed more than 3 years ago and had been been RFE'd, approved, reopened with intent to revoke (NOIR), revoked, and then reopened again for more evidence (required from the US, Canada, Europe and Asia).

Unlike an RFE, which usually gives the petitioner/applicant 90 days to answer and does not allow and extension of time, the decision to reopen in this case was more like an NOIR, which allows only 33 days to answer, but gives a Service (USCIS) officer authority to extend the time to answer for good cause.

When the initial NOIR for this case was issued in late 2013, there was no difficulty obtaining a 60-day extension of time by a simple phone call to the USCIS customer service 800 number. But in the case of this most recent decision, which raises issues no less complex than the ones in the previous NOIR, trying to get even a simple yes or no answer on the petitioner's request for a 30-day extension from either the TSC or the USCIS customer service 800 number has been more like pulling teeth.

As mentioned in my above post, I first contacted the TSC by email in the early part of August to ask for an extension. Not receiving an answer, I called the TSC's customer service number about a week later and was told that I would either have to ask for the extension by phone to the USCIS 800 number, or send a request in writing directly to the adjudicator on the case.

I promptly did both. I called the 800 number four times in one day. The first two times, after a long wait to be called back by a "second-level" information officer, I was cut off without explanation. The third time, I finally got to speak with an officer, but was told that she could not talk to me about the case because my G-28 attorney's notice of appearance was not on file.

Since I had initially filed my G-28 with the TSC some nine months earlier, had sent duplicates to the TSC at least two or three times since, and have been receiving communications and notices from the TSC during that entire time, this came as a surprise.

Moreover, the USCIS customer service officer seemed to have no idea whatsoever of the difference between an RFE and a decision on a Service motion to reopen which I have mentioned above. Therefore she insisted, in direct contradiction to a USCIS regulation cited in the TSC's notice itself, that my client would not be entitled to an extension in any event.

My fourth call was did not produce any different result, even though this time, for once, the officer seemed genuinely willing to help and spent a good deal of time with me on the phone.

But, for a brief time, there seemed to be a ray of hope. About a week after the above discussions with both the USCIS and the TSC customer service information officers, I received an email message from the TSC saying that I would get a written answer to my extension request. But more than ten days later, no answer has yet arrived.

Finally near the end of August, my client, who had returned from abroad ahead of time in order to give the USCIS officers permission by phone to speak with me as her attorney (my often filed G-28 Notice of Appearance having evidently fallen into a black hole somewhere in the immigration system) joined me in calling the USCIS 800 number line (my fifth time for this case) in order to ask for an extension.

We were told that the USCIS customer service line was not allowed to intervene until 30 days had passed from the time of the decision. In fact, our call was made on the 30th day after the decision was mailed out!

Maybe lawyers are not the best people to get extensions of time to respond to notices from the USCIS. Dentists might have better results.
____________________________
Roger Algase is a New York lawyer and graduate of Harvard College and Harvard Law School. He has been practicing employment and family immigration law for more than 30 years, concentrating in O-1 and H-1B work visas, and EB-1 extraordinary ability and PERM labor certification green cards, as well as green cards through opposite or same sex marriage. His email address is algaselex@gmail.com


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Updated 09-20-2014 at 06:39 PM by ImmigrationLawBlogs

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  1. Nolan Rappaport's Avatar
    Of course, Roger is not the only person to have problems with the bureaucracy. I have a story to tell too.

    Catch 22
    by Nolan Rappaport

    On June 9, 2010, I used FedEx to file an I-485 adjustment of status application, an application for a travel document, and an I-360 immigrant visa petition for a religious worker. USCIS is required by a court order to accept concurrent filing of an I-485 with an I-360 if it is based on religious worker status.[1] But when the lockbox electronically scanned the applications, it rejected the adjustment application and the application for a travel document but accepted the I-360. I have not received a Form I-797c Notice of Receipt for the I-360 yet. The rejection notice says that the adjustment of status application cannot be filed unless a Form I-797c Notice of Receipt is included to show that the I-360 has been received. In other words, we rejected the I-485 because it was received with an I-360. If you want the I-485 to be accepted now, you will have to prove that we have received the I-360.

    If the author of Catch 22, Joseph Heller, were still alive, I would tell him about this situation. In his book, Army Air Corps Captain John Yossarian devises multiple strategies to avoid combat missions, but the military bureaucracy is always able to find a way to make him stay. He told them he was crazy, which justified not sending him out on any more missions. But it was perfectly rational for someone not to want to go on those missions. Ergo, the Army concluded, Yossarian was not crazy.

    The rejected applications did not reach me until July 8, almost a month after they were rejected. This might just have been an amusing story to tell my friends over a beer but for the fact that my client's mother had just died and he needed a travel document to attend her funeral in Nigeria.

    I called USCIS customer service to straighten this out. I spoke to several USCIS representatives. They all told me the same thing. This was service error. The lockbox should have accepted the adjustment application and the travel document application with the I-360, but it was not programmed to do it. File the applications again. But, I responded, I cannot file the applications again until I have proof that the I-360 was filed, which I do not have yet.

    I took the problem up a level and spoke to a supervisor. He was apologetic, but he said I would have to comply with the lockbox instructions. He explained that there was no way to get the applications into the hands of a human being unless I resubmitted them via ordinary mail. That would take too long.

    Bottom line. My client is going to miss his mother's funeral.

    For the rest of the article, see http://www.ilw.com/articles/2010,0712-rappaport.shtm
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