The "RFE Memo" Is Rescinded, Re-Drafted And Re-Issued
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Yates, USCIS Associate Director of Operations has acceded to the pressures from the immigration bar and the public and rescinded the controversial "RFE Memo"  he issued on May 4, 2004.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 or the record was complete. 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.
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; an I-130 petition for a grandmother, or niece for whom there are no visa categories; an L-1 petition where there is no qualifying relationship with a foreign entity. New examples are also given: an H-1B petition for a factory machine operator is clearly not a specialty occupation;  an E-1 treaty trader or E-2 treaty investor petition for a beneficiary that is not from the treaty country; 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. 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.
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.
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."
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, adjustment of status applications for some physicians, and certain legalization applications.
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).
Rómulo E. Guevara is a senior attorney with Neil A. Weinrib & Associates, www.nawlaw.com, 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.
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