ILW.COM - the immigration portal Immigration Daily

Immigration Daily: the news source for legal professionals. Free! Join 35000+ readers

Home Page

Advanced search


Immigration Daily

Archives

Processing times

Immigration forms

Discussion board

Resources

Blogs

Twitter feed

Immigrant Nation

Attorney2Attorney

CLE Workshops

Immigration books

Advertise on ILW

VIP Network

EB-5

Chinese Immig. Daily

About ILW.COM

Connect to us

Make us Homepage

Questions/Comments


SUBSCRIBE

Immigration Daily

 

Chinese Immig. Daily



The leading
immigration law
publisher - over
50000 pages of free
information!

Copyright
©1995-
ILW.COM,
American
Immigration LLC.

Immigration Daily: the news source for
legal professionals. Free! Join 35000+ readers
Enter your email address here:



< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

USCIS Clarifies Its Policy On Issuance Of RFEs

by Olivia Thuma

The United States Citizenship and Immigration Services (USCIS) has recently issued two memoranda, authored by William Yates, Associate Director for Operations, which provide guidance on issuance of Requests for Evidence (RFEs). The first Yates Memo of April 23, 20041 addresses the significance of a prior approval of a nonimmigrant petition in the context of a subsequent determination regarding eligibility for extension of petition validity.2 The second Yates Memo of May 4, 20043 states that an RFE is not required for every case prior to adjudication and clarifies when adjudicating officers may deny an application or petition without issuing an RFE.

1. The Yates Memo of April 23, 2004

Adjudicating officers are not bound to approve subsequent petitions merely because of a prior approval, which may have been issued erroneously.4 However, recent USCIS practices reveal that adjudicators have frequently exceeded their authority when questioning prior determinations that were readily approved. The Yates Memo of April 23, 2004 sets forth a general policy against re-adjudicating previously approved petitions when there is no material change in the underlying facts, to avoid issuance of unjustified RFEs or denials.

More specifically, the memo states that in extension cases involving the same parties and the same underlying facts, a prior determination made by an adjudicating officer regarding the eligibility of the beneficiary of a petition for the classification should be given deference. However, notwithstanding the fact of a prior approval, the adjudicator may request additional evidence or deny the petition on three grounds:

1) There was a material error with regard to the previous petition approval;

2) A substantial change in circumstances has taken place; or

3) There is new material information that adversely impacts the petitioner’s or beneficiary’s eligibility.

A material error is a misapplication of the pertinent law or regulation to the facts of the case. An example of a material error is an H-1B petition approval where the beneficiary’s degree is not appropriate for the occupation. The memo specifically points out that adjudicating officers should not question subjective determinations made by prior adjudicators, including an evaluation of the beneficiary’s education, specialized training, and progressively responsible experience in a degree equivalency determination.

A substantial change in circumstances is a material change to either the petitioner’s or the beneficiary’s eligibility for the given classification. For example, in L extension cases, the adjudicator needs to make a new determination of eligibility for the given classification if a change in the corporate relationship occurs, or a change in the nature of the beneficiary’s employment takes place, including a change in job duties, a change from a specialized knowledge to a managerial or executive position, or a change in the organizational structure of the petitioning company. Similarly, in H extension cases, where the instant specialty occupation requires licensure, the adjudicator needs to review whether the beneficiary obtained a permanent license or continues to hold a temporary license in the state of intended employment.

New material information includes any fact not available to the previous adjudicating officer that adversely impacts the petitioner’s or beneficiary’s eligibility for the classification sought. This could be information affecting national security or public safety obtained from security checks.

It is hoped that this memo will prevent re-adjudication of petitions already approved where there is no material change in the underlying facts, and as a result, eliminate issuance of unnecessary RFEs or unjustified denials, which have been causing significant time delays in processing extension petitions.

2. The Yates Memo of May 4, 2004

On the other hand, the Yates Memo of May 4, 2004 re-affirms that an RFE is not required for every case prior to adjudication. The memo clarifies that adjudicating officers may deny an application or petition without issuing an RFE if there is evidence of clear ineligibility5 or the record is complete.6

Clear ineligibility exists when an applicant or petitioner does not meet a basic statutory or regulatory requirement. This may include circumstances where the applicant or petitioner fails to establish that they are eligible to file for the requested benefit, or they clearly fail to meet a substantive requirement needed to establish eligibility for the benefit sought. The memo gives several examples of clear ineligibility, including: a petitioner seeking to file a Form I-130 who is not a qualifying relative; a petitioner in an L case who does not have the required relationship to a foreign company abroad; an E-1 treaty trader or E-2 treaty investor who is not a national of a country with a qualifying treaty with the United States; or a beneficiary, whose education documents clearly establish that he/she does not have the required degree or equivalency for H-1B status.

If the record is complete with respect to all initial evidence specified in the regulations, on the application/petition, and accompanying instructions, the adjudicating officer is not required to issue an RFE to obtain further documentation to support a decision based on that record. The adjudicator may issue a denial if the applicant or petitioner has not met his or her burden to establish eligibility for the benefit sought. The memo gives an example of the I-140 immigrant petition, where the petitioner is required to submit initial evidence specified in the regulations such as copies of annual reports, federal tax returns, or audited financial statements, to establish its ability to pay the beneficiary the proffered wage.7 If the petitioner submits one of these required documents, and the adjudicator determines that the submitted document fails to establish its financial ability, he/she may deny the petition without issuing an RFE. Similarly, the memo could also apply more drastically to an L-1A petition in which the petitioner submits all the required evidence, including proof that the beneficiary will be employed in a managerial position.8 The adjudicator may still deny the petition without issuance of an RFE, if he/she determines that the evidence fails to establish the managerial nature of the job duties.

The Yates Memo of May 4, 2004 also notes that the USCIS is only required to issue an RFE when initial evidence is missing.9 In all other instances, when the evidence raises issues regarding eligibility or does not fully establish eligibility, issuance of an RFE is discretionary. The memo specifically states that the adjudicating officers may deny cases when they determine that the applicant or petitioner has not met his/her burden to establish eligibility for the benefit sought, rather than exercise discretion and issue and RFE prior to final adjudication. The American Immigration Law Association (AILA) raised concerns about the memo, which instructs adjudicating officers to issue decisions rather than RFEs in many instances. Bill Yates, Associate Director of Operations at USCIS is currently addressing these concerns.10

It is hoped that USCIS adjudicators will carefully consider all submitted evidence before they deny a petition without issuing an RFE. If the case is denied, the applicant or petitioner is left only with the option to file an appeal or a motion to reopen/reconsider, which is a time-consuming process and which also does not guarantee that the initial denial decision would be reversed.


1 Memorandum from William Yates, Associate Director for Operations, HQOPRD 72/11.3 (April 23, 2004).

2 This memo does not apply to E-2 treaty investor and L-1 “new office” extension petitions.

3 Memorandum from William Yates, Associate Director for Operations (May 4, 2004).

4 Matter of Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988).

5 8 CFR §103.2(b)(8).

6 8 CFR §103.2(b)(1).

7 8 CFR §204.5.

8 8 CFR §214.2(l)(3)(ii).

9 8 CFR §103.2(b)(8).

10 RFE Memo Clarification Sought, posted on AILA InfoNet at Doc. No. 04051462 (May 14, 2004).


About The Author

Olivia Thuma is a Law Clerk at Cyrus D. Mehta & Associates, PLLC. She graduated with a Master of Laws degree from Columbia Law School in 2003, where she was a Human Rights Fellow. She also received a Master of Law degree from the Jagiellonian University Faculty of Law and Administration (Poland) in 2001. She was a recipient of scholarships from Columbia Law School, Boston College, SOROS, OSI, and the Ministry of Education of the Republic of Poland. This article was written under the supervision of Cyrus D. Mehta, Esq. Further inquiries to the firm can be made at (212) 425-0555 or info@cyrusmehta.com.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


Immigration Daily: the news source for
legal professionals. Free! Join 35000+ readers
Enter your email address here: