In Praise of USCIS Director Mayorkas

[Editor’s Note: This article is courtesy of our guest blogger Kenneth A. Cohen, Partner atKavinoky Cook LLP, who offers praise of USCIS Director Alejandro Mayorkas.]

Alejandro Mayorkas became the Director of the U.S. Citizenship & Immigration Services (USCIS) in August 2009. Initially, it seemed that Mr. Mayorkas took the easy approach that many of his predecessors at the agency had taken. He became immersed in the naturalization process, expedited the procedures for naturalization of our servicemen, attended many naturalization services, and relished the “feel good” citizenship component of the U.S. Citizenship & Immigration Services. During this period, service center adjudicators ran amuck in their (unbelievable) requests for evidence in both immigrant and nonimmigrant petitions. Every annual conference of the American Immigration Lawyers Association (AILA) for the past three or more years contained a component related to responding to USCIS requests for evidence.

USCIS hit a low point when it started issuing five page or longer requests for evidence. A typical request for evidence in an L-1A case requested proof of payment for stock purchases, bank statements, business memberships, office floor plans, zoning maps, insurance policies, letters of proof of insurance, occupancy permits, and even pictures of the toilets! These requests engendered the impression that the agency had lost track of its mission. The adjudicators were attempting to protect American jobs during a downturn in the economy by keeping out individuals who created jobs and stimulated the economy.

Alejandro Mayorkas stepped up. He labeled customers “stakeholders.” He initiated and has continued to implement telephonic meetings between customers and responsible officers of the Service. Customers tell these officers their concerns.

After responding to an outrageous request for evidence on an intracompany transferee petition for a manager, I decided to write Mr. Mayorkas a letter expressing the many ways USCIS adjudicators had failed to follow proper evidentiary and legal standards in its adjudication. I never sent that letter! On June 14, 2011 the USCIS published its executive summary of the stakeholder engagement on L-1B interpretation of the term “specialized knowledge.” That report contained complaints about lack of training on adjudicatory standards, overwhelming, unnecessary documentary demands, lack of knowledge related to the law, and the confusion it engendered compared to what actual adjudicatory standards were. All of the comments contained in that stakeholder engagement summary pertained to the L-1A category and many other categories of immigration benefits. Mr. Mayorkas provided a means by which the public could directly criticize USCIS’ performance.

Listening to criticism without acting on it is meaningless. On December 15, 2011 USCIS released a draft template for comment on a revised request for evidence for I-129 intracompany transferees. This revised request for evidence not only eliminated superfluous documentary requests, but also broke the request for evidence down into five quantitative areas which required elements of proof, forced the adjudicator to reach a decision as to whether or not the elements of proof were satisfied in each area, and if not satisfied explained why the evidence was not sufficient, and limited the request to reasonable information to permit the adjudicator to act.

Mr. Mayorkas’ leadership in effecting these changes demonstrated an understanding of how the agency worked, his grasp of the agency’s internal operations and how to use its internal processes to accomplish systemic change. He did not just listen to complaints and dictate a response. He had the agency’s civil servants listen to those complaints in order to determine the reasonableness of those complaints. He had the agency’s attorneys develop legal guidelines for the adjudicatory process, determine reasonable responses, and then published its response for additional public comment. This approach permitted individual USCIS adjudicators to buy into the agency’s new standards and will hopefully remain in place beyond Mr. Mayorkas’ term in office.

Maybe next year AILA will not have a session on “Please Make the Music Stop! Anticipating Avoiding and Attacking NIV RFEs.”

[Editor’s Note: Mr. Kenneth A. Cohen has practiced U.S. immigration law since 1979 and heads up the immigration practice group at Kavinoky Cook LLP in its New York Office. Mr. Cohen has been invited to lecture and present before numerous organizations. He is co-author of Lawyer’s Guide to the Immigration Reform and Control Act of 1986: Wm. S. Hein & Co. 1981, as well as numerous other articles. Mr. Cohen is also a finalist for the Annual Conference (AC180) Social Media Competition sponsored by AILA. You may follow him on Twitter at @cohken or friend him onFacebook.]