Good News : USCIS Rescinds Negative RFE Memo!

We at The Law Office of Sheela Murthy, P.C. are pleased to report some positive immigration news that will be of interest to many MurthyDotCom and MurthyBulletin readers! The U.S. Citizenship and Immigration Services (USCIS) issued a memo on February 16, 2005, to all Regional Directors, Service Center Directors, District Directors, and Officers-In-Charge that rescinds the controversial May 4, 2004 Memo regarding Requests for Evidence (RFEs). The May 4, 2004 Memo was being used by many adjudicators to justify denials of cases without the issuance of an RFE and without providing the parties with an opportunity to address perceived weaknesses in a case. The May 4, 2004 Memo was addressed in our May 7, 2004 MurthyBulletin article, USCIS Memo: More Denials, Fewer RFEs, available on MurthyDotCom.

Samplings Used to Help Determine Revised Policy

The February 16, 2005 Memo indicates that the prior (May 4, 2004) RFE Memo was issued because adjudicators were issuing RFEs on cases that were clearly not approveable under any circumstance. These are cases that, essentially, are asking for an immigration benefit that does not exist. The issuance of RFEs in these cases resulted in delays in the processing of legitimate cases. As explained below, this category of case can still be denied without an RFE.

Since the May 2004 RFE Memo was issued, the USCIS looked at another sampling of files. They found that many cases were being denied that could have been approved if the applicants had been given the opportunity to provide additional information in response to the RFEs or Notices of Intent to Deny (NOIDs). On this basis, the USCIS has recognized that the “denial without RFE” system was of no greater help to customers of the USCIS than the prior practice of issuing essentially useless RFEs. In light of these revelations, the USCIS has now taken the step of rescinding the prior Memo and issuing the new (February 16, 2005) RFE Memo.

Outright Denials Allowed under Certain Circumstances

The new RFE Memo retains the concept that a case may be denied if it is clearly not approvable. These are cases where basic statutory or regulatory requirements are clearly missing.

This includes cases where the applicant or petitioner is categorically ineligible to receive a benefit, including, but not limited to:

Applications for naturalization from persons under the age of 18 years;

I-130 relative petitions filed for ineligible classes of relatives, such as grandparents or nieces;

L-1 inter-company transferee petitions where the company in the U.S. clearly has no relationship to a foreign company abroad;

Cases where the evidence shows that a substantive requirement for a benefit cannot be met, including, but not limited to:

• an H1B petition for a factory machine operator or other position that clearly does not require a bachelor’s degree or higher;
• an E-1 or E-2 treaty trader or investor petition filed for a beneficiary who is not a national of a country that has a qualifying treaty with the U.S.; or
• an H2B temporary worker petition for a beneficiary who has already been in the U.S. for three years or more without a six-month absence.

Approval of an Application or Petition without an RFE or NOID

The February 16, 2005 new RFE Memo clearly provides that, if an applicant or petitioner has established eligibility for the immigration benefit sought, the case should be approved. The new RFE Memo reminds adjudicators that the old “Zero Tolerance Memo” issued in 2002 as a reaction to 9/11 has been rescinded. [More information is available in our Oct 3, 2003 article ‘Zero Tolerance’ Policy Withdrawn.] Therefore, there is no need to issue RFEs or NOIDs merely to eliminate all potential doubt and all possibility for fraud. Instead, the new RFE Memo recognizes that the standard for petitioners and applicants is a “preponderance of the evidence” standard. This is a term of law meaning that the petitioner or applicant must establish that it is more likely than not that the person or entity filing the application or petition has met the burden of proof for the case to be approved. This is a much lower standard than the “beyond a reasonable doubt” standard in criminal matters or the “clear and convincing” standard in quasi-criminal cases, both of which are far more stringent.

When Issuance of RFE or NOID is Appropriate

If an adjudicator believes that the evidence provided raises questions about eligibility or does not fully establish eligibility, the issuance of an RFE or NOID is still discretionary. The new RFE Memo strongly recommends, however, that the adjudicator issue the RFE or NOID. The Memo gives guidance as to how the examiner is to decide between issuing an RFE or NOID.

Selecting to Send an RFE

The February 16, 2005 new RFE Memo directs an adjudicator to issue an RFE, rather than a NOID, if a necessary piece or pieces of evidence are missing. According to the Memo, “the highest quality RFE is one that limits the request to the missing evidence. Generally, it is unacceptable to issue a RFE for a broad range of evidence when, after review of the record so far, only a small number of types of evidence is still required.” The new RFE Memo recognizes that RFEs requesting a full gamut of information when only a small amount is needed to make a final decision “overburdens the USCIS’ customers, over-documents the file, and wastes examination resources through the review of unnecessary, duplicative, or irrelevant documents.” This directive is obviously a welcome one and, hopefully, something that will make its way into actual practice.

While adjudicators may use template language in an RFE, the Memo advises that all requests included in a particular template may not be appropriate for every RFE. Therefore, adjudicators are advised in the new RFE Memo not to send the entire template but only the portions applicable to the particular case.

Selecting to Issue a NOID

USCIS adjudicators are directed to issue a NOID rather than an RFE if the filing does not appear to establish eligibility by the preponderance of the evidence, the case appears ineligible for approval but not necessarily incurable, or the adjudicator intends to rely on evidence not submitted by the filer for denial of the case. Under the new RFE Memo, NOIDs must provide an explanation as to why the case might be denied in order to give the applicant or petitioner the opportunity to respond or rebut the concerns of the adjudicator.

NOIDs are currently required under regulation in lieu of outright denial for Violence Against Women Act (VAWA) petitions, adjustment of status applications for certain physicians, and certain legalization applications. This regulation may be changed in the future.

Evaluating Responses to RFEs and NOIDS

The new RFE Memo reminds adjudicators to evaluate cases based on the complete record of evidence once RFE or NOID responses are received. They are not supposed to simply rely upon the information provided in response to the RFE or the NOID. The Memo recognizes that an RFE response may result in the need for the issuance of another RFE or NOID. The Memo indicates, however, that it should be much rarer that another NOID or an RFE is issued after receiving a NOID response. We note that it is best to assume that, in most cases, the RFE or NOID response will be the last opportunity to supply evidence and address issues of concern prior to a decision. Thus, it should be treated as such and prepared so that all necessary evidence and arguments are made with the response to the RFE or the NOID. It may be that the case will be transferred for an interview or another RFE / NOID will be issued, but one should never assume that s/he will be given another chance.

Referrals for Fraud

In addition to issuing an RFE or NOID when appropriate, the adjudicator may also refer a case to a Fraud Detection and National Security (FDNS) Immigration Officer if the adjudicator suspects fraud. Such a referral, however, must be based on conflicting or derogatory information available to the adjudicator that would lead a reasonable person to question the truthfulness of the applicant, petitioner, and/or other entity (such as attorney) associated with the benefits sought.

Conclusion

The new RFE Memo reflects that the USCIS has a commitment to customer service even while security remains a priority. We not only applaud, but offer a standing ovation to the USCIS for the decision to rescind the May 4, 2004 RFE Memo and issue a more instructive and comprehensive guidance to its officers. Issued on February 16, 2005, this made a nice gift during the week of St. Valentine’s Day for the benefit of the immigrant community!