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The "RFE Memo" Is Rescinded, Re-Drafted And Re-Issued

by Romulo E. Guevara

In a surprising, yet welcomed action, William R. Yates, USCIS Associate Director of Operations has acceded to the pressures from the immigration bar and the public and rescinded the controversial "RFE Memo" [1] he issued on May 4, 2004. The RFE Memo embodied the principle that an RFE was not required for every case prior to adjudication. The memo permitted adjudicating officers to deny an application or petition without issuing an RFE if there was evidence of clear ineligibility[2] or the record was complete.[3] The new memorandum seeks to alleviate the damage inflicted upon thousands of applicants whose requests for immigration benefits was met with the harshness of outright denials from often renegade adjudicators who used the now defunct RFE memo as an inflexible adjudicatory tool.


The RFE Memo instructed adjudicators that clear ineligibility existed when an applicant or petitioner did not meet a basic statutory or regulatory requirement. For instance, if the applicant or petitioner failed to establish that he or she was eligible to file for the requested benefit, or clearly failed to meet a substantive requirement needed to establish eligibility for the benefit sought.[4]

If the record was complete with respect to all initial evidence specified in the regulations, on the application/petition, and in the accompanying instructions, the adjudicating officer was not required to issue an RFE to obtain further documentation to support a decision based on that record. The adjudicator was permitted to issue a denial if the applicant or petitioner had not met his or her burden to establish eligibility for the benefit sought.[5] If the petitioner submitted one of a list of regulatory required documents, and the adjudicator determined that the submitted document failed to establish its burden of proof (e.g., financial ability in employment-based permanent cases), he or she could deny the petition without issuing an RFE.

The RFE Memo also noted that the USCIS was only required to issue an RFE when initial evidence [6] was missing. In all other instances, when the evidence raised issues regarding eligibility or did not fully establish eligibility, issuance of an RFE was discretionary.

The New RFE Memo[7]

The New RFE Memo acknowledges that leading up to the issuance of the first RFE Memo in May 2004, the adjudicatory practices of USCIS revealed that unnecessary RFEs were issued. This practice naturally drained the limited resources, increased processing times, and confused petitioners and applicants. Mr. Yates admits that a misimpression was caused by the first RFE memo "that cases could be denied without RFE or NOID even when a RFE or NOID may have given the applicant or petitioner a reasonable chance to resolve adjudicators' concerns about lack of evidence or about apparent ineligibility." Thus, the New RFE Memo embarks upon a re-confirmation that not every case requires an RFE or NOID, but also it guides adjudicators on how to differentiate between RFEs and NOIDs, and when each is appropriate.

  1. Denial with Evidence of Clear Ineligibility

    Similar to the first memo, the new guidance focuses on permissible denial without RFE when there is clear ineligibility under 8 C.F.R. § 103.2(b)(8). Clear ineligibility speaks to the inability to meet a basic statutory or regulatory requirement. The examples used to illustrate his point are the same as in the first RFE Memo: A naturalization applicant who is under the age of 18;[8] an I-130 petition for a grandmother, or niece for whom there are no visa categories;[9] an L-1 petition where there is no qualifying relationship with a foreign entity.[10] New examples are also given: an H-1B petition for a factory machine operator is clearly not a specialty occupation; [11] an E-1 treaty trader or E-2 treaty investor petition for a beneficiary that is not from the treaty country;[12] and a petition for H-2B status for a beneficiary that has been present in the U.S. over the previous three years without the required six month absence.[13] In these circumstances, the new RFE Memo states, a denial is warranted without RFE or NOID because any additional evidence, even if requested to the petitioner or applicant, could not cure or perfect the statutory or regulatory deficiency. These cases are one end of the spectrum.
  2. Record is Complete and Case is Approvable

    On the opposite side of the adjudicatory landscape, Yates point out that where a case contains all of the required evidence in the record, it should be approved if it appears approvable. Under 8 C.F.R. § 103.2(b)(1), approval is warranted when an applicant or petitioner has established eligibility for the benefit sought. The memo indicates that adjudicators were issuing unnecessary RFEs in approvable cases just to find additional support to justify the approval.
    On the other hand, Yates explicitly reveals that adjudicators were issuing RFEs "to eliminate all doubt and all possibility for fraud." He cites the "zero tolerance memo" issued by legacy Immigration and Naturalization Service (INS) Commissioner Ziglar in the aftermath of 9/11.[14] However, Yates reminds adjudicators that the Ziglar memo was rescinded in September 2003. The New RFE Memo directs adjudicators not to issue an RFE or refer the case to the Fraud Detection and National Security (FDNS) approvable cases based on initially evidence simply because they want to make sure no fraud exists.

  3. The Preponderance of the Evidence is the Proper Standard of Review

    The New RFE Memo correctly refocuses adjudicators' attention back to the "preponderance of the evidence" [15] as the standard of review. What the New RFE Memo does not do is actually define the term "preponderance of the evidence" so that adjudicators can be absolutely clear of how to evaluate the record before them.

    The Administrative Procedure Act and decisions under that Act define the burden of persuasion as a preponderance of the evidence.[16] Thus, the standard applies to USCIS proceedings by operation of law. The term is generally construed to mean that approval "demands only 51% certainty," [17] which is another way of saying it is more likely than not that the evidence supports approval. On the contrary, proof beyond a reasonable doubt requires proof with no less than 98% certainty.

    Mr. Yates hints in the new directive that adjudicators were applying a higher standard to the cases. It is quite disturbing to confirm, as practitioners long suspected, that many USCIS adjudicators were scrutinizing cases under the higher standard of proof accorded to criminal proceedings! The new procedural guidance will hopefully end such an inexcusable practice.
  4. Issuance of RFEs

    While the first RFE Memo made issuance of an RFE discretionary if the record is complete, the New RFE Memo adds that an RFE or NOID "is usually discretionary but strongly recommended" absent lack of eligibility under the preponderance of the evidence or special cause for concern. The question becomes, which should be issued, an RFE or NOID?
  5. Before addressing this question, it is important to note that the new RFE Memo chastises adjudicators for issuing "broad brush" (whole template) RFEs to insure a fraud-free filing. Mr. Yates directs adjudicators to refer cases to the local FDNS Immigration Officer pursuant to established procedures if they suspect fraud in a particular case. However, he states that the threshold needed for a FDNS referral must be "based on some sort of conflicting or otherwise derogatory information that would lead a reasonable person to question the veracity of the applicant, petitioner, and/or other entities associated with the benefit(s) sought."

    The new directive requires adjudicators to issue RFEs when necessary evidence is missing. However, Yates does not elaborate with examples for a clearer directive. He does state that RFEs should be "of the highest quality," which means RFEs limited to the missing evidence. The New RFE Memo condemns "broad brush" RFEs when small pieces of evidence are missing. In the past, as practitioners are aware, "broad brush" RFEs resulted in an entire template requesting submission of evidence that was already included in the initial petition. Yates now requires adjudicators to examine the record carefully and limit the RFEs to specific missing evidence. Finally, if a full template RFE is necessary because the record lacks a significant amount of evidence, Yates requires the adjudicator to consult with a supervisor first.

  6. Issuance of NOIDs

    The New RFE Memo also discusses the circumstances where a NOID is appropriate instead of a RFE. A NOID is to be issued where there is initial evidence but (1) the preponderance of evidence test is not met; (2) there is ineligibility for approval but it is not necessarily incurable; or (3) the adjudicator intends to rely a denial based on evidence not found in the record.

    Yates states that NOIDs are "designed to provide a poignant taste of denial without its immediate consequences, so that the filer can understand why the evidence submitted has not been persuasive and can have the best chance to overcome the deficiency if possible." If the response to the NOID is insufficient, the denial will likely mirror the NOID in most cases. The New RFE Memo allows the possible combination of an RFE and NOID when additional evidence is needed and an explanation of the intended basis for denial. Yates makes it clear that the instruction on the specificity of RFEs also applies to the writing of NOIDs. Also, NOIDs are by regulation to be issued before a denial, such as battered spouse petitions[18], adjustment of status applications for some physicians[19], and certain legalization applications.[20]

  7. Evaluation of Responses

    The evaluation of responses to RFEs or NOIDs must be performed along with an examination of the initial evidence submitted. This statement in the New RFE Memo suggests that adjudicators were making adverse decisions based only on the RFE and not with a complete review of all the evidence including the initial submissions. Yates states that a further RFE or NOID may be issued if and when the RFE or NOID response opens "a new line of inquiry." Yet in other cases, he says, while the RFE response may provide the missing evidence, a review of the entire evidence may yield an unpersuasive record. In this case, a NOID is not required. It should be a rare practice for NOIDs to be followed with a new RFE or second NOID.
  8. Denials

    If a denial is warranted, the New RFE Memo emphasizes the need for specific and detailed decisions that are sufficient to (1) withstand judicial scrutiny, and (2) provide notice of the available appellate remedies to the applicants. Yates encourages adjudicators to seek advice from supervisors or USCIS counsel in the drafting of denials if necessary.

The New RFE Memo reflects the many concerns voiced by practitioners, petitioners, and beneficiaries. It sets the stage for higher efficiency and fairness both on the USCIS side and on the customer side. If implemented properly, the new procedural guidance will significantly reduce the slew of unnecessary denials without RFEs. By introducing a better mechanism for adjudicators and applicants to understand, it will alleviate the frustration caused by its predecessor guidance. The New RFE Memo also has the potential to increase the not only the issuance of RFEs, but also the quality of RFEs. It will focus on specific evidence needed to successfully complete the adjudicatory process. It is hoped the new guidance will produce just results which were often lacking since the initial guidance emerged in immigration law.

© 2005 by Rómulo E. Guevara. This article is based on an abbreviated version of a forthcoming article to be published by Interpreter Releases.

1 Memorandum by William R. Yates, Associate Director for Operations, "Requests for Evidence (RFE)," (May 4, 2004).
2 8 CFR § 103.2(b)(8).
3 8 CFR § 103.2(b)(1).
4 The RFE Memo gave several examples of "clear ineligibility": a petitioner that sought to file a Petition for Alien Relative (Form I-130) who was not a qualifying relative; a petitioner in an L case who did not have the required relationship to a foreign company abroad; an E-1 treaty trader or E-2 treaty investor who was not a national of a country with a qualifying treaty with the U.S.; or a beneficiary, whose education documents clearly established that he or she did not have the required degree or equivalency for H-1B status. See, note 1 above.
5 The RFE Memo gave an example in the I-140 immigrant petition context, 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. See, 8 CFR § 204.5(g)(2).
6 8 CFR § 103.2(b)(8). Initial evidence is defined as evidence required by regulation or by the instructions on the application or petition form. 8 CFR § 103.2(b)(1).
7 Memorandum by William R. Yates, USCIS Associate Director of Operations, "Requests for Evidence (RFE) and Notices of Intent to Deny (NOID), HQOPRD 70/2 (February 16, 2005).
8 Immigration and Nationality Act (INA) § 334(b).
9 INA §204.
10 INA §101(a)(15)(L).
11 INA §101(a)(15)(H)(i)(b).
12 8 C.F.R.§ 214.2(e)(6) and (7).
13 8 C.F.R § 214.2(h)(12)(iv).
14 Memorandum by James W. Ziglar, Commissioner, Immigration and Naturalization Service, "Zero Tolerance Policy," (March 22, 2002), posted on AILA InfoNet Doc. No. 03121942 (December 19, 2003).
15 Matter of E-M, 20 I. & N. Dec. 77, 83 (BIA 1989) (preponderance of evidence is "rock bottom at the fact finding level of civil litigation," citing, Charlton v. FTC, 543 F.2d 903, 907 (D.C.Cir.1976)).
16 See, 5 U.S.C. § 556(d). See also, Steadman v. SEC, 430 U.S. 91 (1981).
17 Matter of Soo Hoo, 11 I&N Dec. 151 (BIA 1965). See also, In re M-B-A-, 23 I. & N. Dec. 474, 484 (BIA 2002), and INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987).
18 8 C.F.R. §204.2(c)(3)(ii) and (e)(3)(ii).
19 8 C.F.R. §245.15(i).
20 8 C.F.R. §245a.20(a)(2).

About The Author

Rómulo E. Guevara is a senior attorney with Neil A. Weinrib & Associates,, in New York City, where he focuses on complex business immigration issues for both large corporations and small businesses. He received his undergraduate degree in 1993 from Long Island University and his law degree in 1996 from Hofstra University School of Law in 1996. Romulo is originally from El Salvador and has been practicing immigration law since 1997.

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

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