LEGAL GUIDE
Written by attorney David H. Stoller | Oct 7, 2012

Attorney's Role at CIS Interview

Interviews before Immigration Services Officers (“ISO’s") are an important part of the system of adjudicating immigration benefits. This article will discuss the attorney’s role during an interview. However, before discussing the attorney’s role, let’s be familiar with the ISO’s.

ISO’s receive training once they are brought on board by Citizenship and Immigration Services (“CIS"). The government has a number of training facilities throughout the US and a significant amount of time and effort is spent on training the officers to conduct the work that they will be handling. Most of the ISO’s are not lawyers. A good number of ISO’s have college degrees but the degree is likely not related to adjudicating immigration benefit applications. So it is the training which these officers receive after being hired that is the most significant method of educating an officer on the review and consideration of immigration benefit applications.

As part of the ISO’s training, time is spent on attempting to train the officers on speaking the Spanish language as this is far and away the most often requested foreign language in which interviews are conducted. Some officers who already speak a foreign language will be amenable to conducting an interview in that language although the regulations do not require this. My experience is that most officers would rather conduct an interview in a foreign language that they understand rather than through an interpreter.

In the Orlando Field Office, we are unlikely to know that identity of the ISO that will conduct our interview. Interview “bundles" are provided to the ISO’s prior to the interview with a schedule of the cases to be considered that day. Often times the ISO’s are not provided with any significant period of time to review files prior to the interview. Rather, much of that review occurs either during the interview itself or at some point later on once the interview has been finished and the officer is deciding what is going to be done with the case.

Interviews are called by the name of the “customer" or client. The attending officer will call us and will lead us to the officer’s room. The offices are usually fairly simple with a few pieces of art of perhaps some prior awards or certifications on the wall. The officer will generally ask to see identification for the applicant and any interpreter and from the attorney depending on the officer’s familiarity with the attorney. The officer will place the applicant under oath and all will be asked to sit down.

CIS and the attorneys who appear before the agency have not necessarily seen eye-to-eye at all times when it comes to the attorney’s role at an interview. While CIS recognizes that applicant’s have a right to have an attorney of the applicant’s choosing at the interview, different officers have different ideas of what the attorney’s presence means. I would suggest that most officers and most attorneys agree that the attorney should be a “witness" to an interview that is to be conducted by the officer.

But the question always arises with clients and with officers as to when the attorney can place themselves into the interview. I believe that an attorney is not there to answer questions that go to the heart of the purpose of the interview. If my client cannot answer one of the questions on a naturalization interview it is not my job to provide a clue or a hint to the client. If it is during a marriage interview and one of my clients cannot remember his spouse’s date of birth, again this is not my place to provide that answer.

And I am also a big believer in leaving some of the questions to expect out of my preparation of a client. For instance, when there is a marriage case I believe the issue of whether the marriage was entered for the right reasons to be central to consideration of a Form I-130, Petition for Alien Relative. While I do prepare my clients with an idea of what general types of questions to expect on that issue, I do not provide a laundry list of all possibilities. Rather, if two people are in a bona fide marital relationship, there should be no reasonable question that an officer can ask that the clients cannot answer in a short period of time. And that is what I tell my clients to expect prior to the interview.

So if I am there as a witness, when do I speak up? The answer is that I do not speak up hardly ever. If there is a legal issue to be considered during the scope of an interview, I think that this is something I can discuss. If there is a complicated factual scenario where my knowledge of what happened previously may help to get the interview moving along, I think that is a good idea for me to say something. Otherwise, clients are there to answer the questions and I am there to make sure that the right interview is received.

If an officer is abusive or disrespectful, you better bet I am going to speak up and say something. I have no problem with CIS officers thinking whatever they want about my client but when they are seeking to adjudicate an application they will talk with respect to me and to my clients and they will keep their unsubstantiated opinions out of the interview and out of the adjudication process. The process of deciding how to adjudicate a pending application depends on an administrative record and the interview will be part of that record. What is not part of that record should not be part of the decision on the pending application.

Sometimes, speaking up means we are leaving. So if you are being berated by an ISO who will not stop and who will not get a supervisor when I ask, I am going to advise my client to leave. Is that going to cause a problem? It absolutely will. I am going to catch up with someone who can resolve that problem after an interview like this has ended. Applicants for immigration benefits deserve to be treated in a way that is consistent with the treatment that anyone appearing before any government officer should be treated. And when the behavior exhibited by an ISO falls below that line I am not going to sit there and take it.

I have rarely had problems like this with an ISO, but I have heard lots of clients come to my office and tell me that they have experienced interviews that I would never let a client of mine have happen to them. And when that happens, there are ways in which problems of this type can be addressed with supervisors and with management.

One of the other responsibilities that I have during an interview is to try and resolve any outstanding issues. If there is missing evidence, I need to figure out how to get it and to be provided a Request for Evidence (“RFE") so that I can send my response back in the time frame provided. If the officer wants to see additional evidence, sometimes I speak up to inquire why that evidence is requested. ISO’s are provided a wide range of discretion in the adjudication of their cases, but that does not mean that their RFE’s are always relevant.

Having an attorney at an interview does not mean that you are going to get what you want. My job is to try and get to “yes" as easily and as quickly as possible. If necessary, I can try to change minds if there is some reason why an ISO believes the applicant is ineligible for something and I think that the ISO is incorrect. But the decision to be made is one which the ISO and the agency will make. I can think that the decision is absolutely incorrect, but I cannot make the ISO or the agency do what I believe is the right thing to do. Almost everything can be appealed and while I would like to avoid the additional expense and the additional time required for an appeal, the government and my clients do not always see the same issue the same way. Appeals are just part of the process and this is something that everyone applying for any immigration benefit must understand up front.

A frequent complaint that I hear from clients is that the attorney did not speak up during the interview and did not help me at all. While I do think that speaking up can be appropriate, it is not always the right thing to do. And sometimes it does not matter what is said or who is there, the case is just going to be a difficult matter to have approved. The attorney who shows up can often make a difference, especially in matters that are complex or difficult.

Most ISO’s are not trained in the law much more than the education that is received during their initial officer training and periodic updates provided throughout their career. So an attorney who knows his way around the law and who knows his way around procedure can often help to convince an officer that the applicant’s request is indeed something that can be approved. But my job as the attorney should be completed by the time we appear for the interview. If I have prepared my client appropriately, little should be asked during the interview which will require any response from me unless there is something that the ISO just does not understand.

Before you hire an attorney, think about how that attorney is going to act as your representative and judge that by the way the attorney conducts the consultation. Can the attorney answer your questions and provide you an indication that he or she has the knowledge and experience to get your case approved? Or are you dealing with a paralegal who tells the attorney what to do or an attorney who has others in the office answer substantive questions? Choose wisely from the beginning and you will be well represented. Hiring someone who is the least expensive or who cannot answer your questions from the beginning will get you nowhere. An effective attorney should be there to zealously advocate on your behalf throughout the entire process. Hire someone who knows his/her work, who can show you a passion for that work and who can show that knowledge and passion to you from the very beginning. Good luck.

Additional resources provided by the author

www.davidstollerlaw.com

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