Regulatory Activity on November 30, 2004
Posted Dec 03, 2004
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Several important regulatory actions occurred on November 30, 2004, that may affect immigration procedures. We at The Law Office of Sheela Murthy, P.C. have summarized these for our MurthyDotCom and MurthyBulletin readers.
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Department of Labor
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The Office of Management and Budget (OMB) changed the notation on PERM to indicate that the OMB's review of the Final Rule has been extended. As regular MurthyDotCom and MurthyBulletin readers know, the PERM Final Rule has been pending at the OMB since February 23, 2004, and the OMB generally completes its reviews within 90 days. At first glance it appears that the OMB is merely stating the obvious. The notation that the review has been extended, however, may indicate that the OMB is still considering publication of the PERM regulations and the OMB may make a final review within the next 90 days. If PERM were merely going to fade away, the notation from the OMB would likely have been unnecessary.
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USCIS Proposed Rules
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The USCIS issued a Proposed Rule entitled Removal of the Standardized Request for Evidence Processing Timeframe. A Proposed Rule will not be implemented until there is a period for public comment. The public's comments are reviewed and addressed in any Final Rule. Following the comment period, the OMB again reviews an Interim Final Rule or Final Rule, and the Interim Final Rule or Final Rule could be published in the Federal Register with an implementation date. Therefore, even though this Proposed Rule was published in the Federal Register, it is not in effect, nor is there an estimated date as to when these provisions will be implemented, if ever. There can be significant changes in content between a proposed rule and a Final Rule. It is important to understand these provisions, however, as written comments may be submitted by the public until January 31, 2005.
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The analysis below addresses the most significant changes in the Proposed Rule.
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Eligibility and the Submission of Documents
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The proposed regulation amends the Code of Federal Regulations (CFR) to provide that failure to submit all of the initial required evidence with the petition or application could result in a DENIAL of the petition or application without further notice to the petitioner or applicant.
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The CFR would also be amended under the Proposed Rule to provide that copies of official documents issued by the Department of Homeland Security (DHS) and other supporting documents could be submitted, unless the USCIS specifically requests originals. The requirement remains in place for submitting originals of labor certifications, the application or petition forms, Form IAP-66s, medical examinations, affidavits, formal consultations, and other statements. Letters of current employment have been added to the list of documents that would need to be submitted as originals.
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Flexibility in RFE Response Times
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The Proposed Rule would amend the applicable regulation so as to allow the USCIS to set its own time period to request an original document from the petitioner or applicant. Previously, the USCIS was directed to give the petitioner or applicant 12 weeks to respond to a Request for Evidence (RFE) to provide information or documents. It does tone down the harshness of this section, however, as it removes the mandatory denial or revocation for failure to provide the original, which could not be appealed, and replaces it with language that indicates a failure to submit the original within the deadline could result in a denial or revocation. This gives the USCIS discretion to approve the case even if the original is not available, but it is unlikely the USCIS would do so unless there are extraordinary circumstances resulting in an inability to provide the USCIS with the original document/s.
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USCIS Has Greater Discretion to Choose its Action
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The Proposed Rule would, in effect, totally rewrite the regulation pertaining to issuance of RFEs. The current regulation provides that the USCIS may deny an application or petition without an RFE only in certain types of cases. In those cases where initial evidence is missing, a denial without an RFE can be issued under the current regulation only in two situations. The first is where there is evidence in the record showing ineligibility for the benefit sought. The second is where the application or petition was prescreened by the USCIS prior to filing, the petitioner or applicant was advised by the USCIS that there was initial evidence missing, and the petitioner or applicant chose to file anyway. The regulation also currently provides that, in all other situations where initial evidence is missing, the USCIS should issue an RFE with a 12-week deadline for submission of the requested documents. Further, the USCIS could choose to grant additional time.
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The Proposed Rule, however, modifies the existing policy and proposes the following. If the preponderance of the evidence submitted with the application or petition establishes eligibility, the USCIS will approve the application or petition unless the USCIS has discretion. If the USCIS has been given discretion, the USCIS will approve the petition or application only if the preponderance of evidence shows that the petitioner or applicant is eligible for the benefit sought and that the petitioner or applicant warrants a favorable exercise of discretion. "Preponderance of the evidence" is not defined in the Proposed Rule. The commonly accepted meaning is evidence that, as a whole, shows that the fact sought to be proved is more likely true than not true. The provision that the USCIS will deny a case if there is evidence that shows ineligibility for the immigration benefit remains.
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The Proposed Rule goes on to provide that, if the evidence submitted does not fully establish eligibility, the USCIS may, according to implementing guidance, DENY the application or petition for lack of initial evidence or ineligibility; request more information or evidence from the applicant or petitioner within a specified timeframe, as determined by the USCIS; or notify the applicant or petitioner of its intent to deny and require a response within a specified timeframe, as determined by the USCIS. An RFE or Notice of Intent to Deny (NOID) must be in writing. It must specify the type of evidence required or the basis for the denial, and give adequate notice and sufficient information to respond to the RFE or NOID. The proposed rule indicates that the time allowed for responding to an RFE or a NOID will "generally" not be less than 30 days. While 30 days is normal for a NOID, it is far less than the 12 weeks currently given for RFEs. Further, since the word "generally" is used, it is possible that the USCIS will give less than 30 days in some cases.
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In comments, which are not a part of the Proposed Rule, the USCIS expresses an intent to use a number of factors to determine how long to give a petitioner or applicant to respond to an RFE or a NOID, including: the type of benefit sought; the type of application or petition filed; the type of evidence needed for adjudication; the source and availability of documentation (both foreign and domestic); the effect of denial of an application or petition on the applicant, petitioner, and/or beneficiary; the delivery mechanisms to be used for an RFE or NOID; and other case-specific factors.
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Effect of Failure to Respond to an RFE or NOID
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Under the current regulation, failure to respond to an RFE or NOID is considered an abandonment of the petition or application. The petition or application is therefore denied. The Proposed Rule changes this to provide that the petition or application will be decided based on the original evidence if no response is received to an RFE or NOID. As a practical matter, it is unlikely that this will result in many more approvals since any case that is approvable by the preponderance of the initial evidence should have been approved without an RFE or NOID.
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Increase in Appeal and Motion Fees
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The USCIS issued a second Proposed Rule on November 29, 2004 to raise the appeal and motion fees, which are currently $110. Written comments on this Proposed Rule are due by December 30, 2004. The proposal is to raise these fees to $385. This is a substantial increase. The USCIS expresses the intent that this increase in the fee will help to meet the goal of adjudication of all cases, including motions and appeals, within 6 months and to recoup the actual costs to the USCIS. The USCIS also cites a 12 percent increase in appeal and motion filings from 1993 to 2002.
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Conclusion
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Immigration procedure is once again poised to change. At The Law Office of Sheela Murthy, P.C., we will monitor these proposed rules and the PERM rule to share this useful information with MurthyDotCom and MurthyBulletin readers. We understand that it is important for you to know what it means if or when these rules, or modified versions of these rules, go into effect.
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