It has been my practice when filing immigration petitions with the U.S. Citizenship and Immigration Services ("USCIS") to cite to specific caselaw and to develop the legal arguments in support of the client's position. However, many immigration practitioners simply file the forms and an index with a stack of documents. In my opinion, such a practice fails to prepare a case for litigation, which as processing delays and denials increase, may become necessary. Indeed, denials for some categories has gone up over 60% in the last few years and many of those denials are simply baseless. The answer is to appeal to the courts but in order to do so, the petition must contain the appropriate legal arguments and evidence. In almost all cases, judicial review will be based on the record that is before the agency. That means that the immigration lawyer should present the legal arguments that are necessary when filing a petition for a particular category. A discussion of the facts and the application of the law to the facts is becoming ever so important when filing an immigration petition.
In addition, a response to a Request for Evidence or a Notice of Intent to Deny must be chocked full of legal authority and evidence so that USCIS cannot simply decide as it may. If there are inconsistencies in what USCIS concludes and the evidence, it is more likely that a court will find that the USCIS decision was unreasonable. For example, when filing under Section 203(b)(1)(C) of the Immigration and Nationality Act, I normally cite the federal statute and also cite and quote from the Administrative Appeal Office's precedent decisions, such as Matter of G-Inc., a decision where USCIS set forth the basis for an approvable petition for a "functional manager."
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If you have any questions regarding immigration law, the process for immigrating to the U.S. or filing an immigration appeal, either with the AAO or in federal court, please contact Santiago J. Padilla at 1-800-483-7197.