We all know by now that Requests for Evidence in O1, H1, L1 and P cases have almost doubled in the past 12 months. It has now become a matter of practice at my firm, to let clients know that a Request for Evidence will most likely happen in their case. This is frustrating to us lawyers, and creating extreme hardship to clients.
The situation is so bad with denials coming from the California Service Center that the LA Times covered this issue in a recent story:
The nation’s immigration chief has launched a effort to quell the outcry from Hollywood and the performing arts community about a spike in visa denials, processing delays and requests for evidence to support their petitions to bring in leading foreign artists for U.S. performances.
In the last year, immigration attorneys across the nation have loudly complained about mounting roadblocks for performance visas from the California service center, which processes petitions for so-called O and P visas for artists and researchers of extraordinary ability.
The Skirball Cultural Center in Los Angeles had to cancel scheduled performances last year of an Argentine music group because California immigration officials challenged whether its fusion of Jewish klezmer music and tango met the requirement to be “culturally unique.”
What could be a reason for this war declaration coming from the California Service Center? According to Greg Siskind it is a mere job security issue:”
The U.S. Citizenship & Immigration Service says no crackdown is afoot. ‘We haven’t changed the way that we do our business over the course of the past few years,’ says agency spokesman Christopher Bentley.
Of course, the statistics show otherwise. One very senior former USCIS confided in me that he believes this is less about an anti-immigrant mood at USCIS and more about simple job security. The overall number of applications being filed at the agency is down dramatically due to the recession and issuing requests for evidence is one for examiners to keep themselves busy.
I have no doubt that this is happening. The evidence requests are themselves the best evidence of what should be considered gross malfeasance on the part of USCIS examiners. Applicants routinely get request for documents that were provided already or are clearly irrelevant. In premium processing cases, evidence requests often come on the last day USCIS has to adjudicate the case. Enticing people to pay an extra $1000 to get speedy processing and then deliberately delaying their cases is a form of fraud – perhaps theft – in my opinion. USCIS should be regularly auditing evidence requests and also soliciting feedback from the applicant community so it can crackdown on such illegal behavior.
The California service center’s denial rates for O visas, which apply to individuals, increased from 9.6% in the 2008 fiscal year to 19.6% this year. Denial rates for P visas, which apply to groups, jumped from 11.1% in 2008 to 26.8% this year. Requests for evidence also grew, from 16.2% of cases in 2008 to 37.5% for individual visas and from 21% to 44.3 % for group visas during that same period. The number for H1B visa RFE’s and denials is even higher.
As attorneys we now have to adjust to the way we prepare petitions. Instead of preparing cases with the best supporting documents possible, we now have to anticipate the open door for denials even when the candidate is very qualified and meets the standard of thew law. If the trend will continue, expect more qualified workers and excellent artists to stop coming to our country, our loss.