USCIS Instructs on RFEs in Adjustment Context
06/04/2004
June 4, 2004 -- William Yates, USCIS Associate Director for Operations, on May 14, 2004 issued a memorandum that instructs Service Centers that, in the context of an application for adjustment of status, updated information regarding the affidavit of support, employment letters and ability to pay determinations should not routinely be required.
In this most recently released "re-engineering memo," Mr. Yates suggests that Requests for Evidence (RFEs) should not routinely be issued in these matters unless the adjudicator has reason to believe that a change has taken place. Moreover, Mr. Yates states that "the passage of time between the approval of the visa petition and the adjudication of the adjustment of status application does not, without more, normally constitute an articulable basis for questioning" either the validity of a job offer or the petitioner's ability to pay. The memo was issued as a result of the "significantly elevated RFE rate." In terms of the three issues, the memo states the following:
Affidavit of Support -- When filing an Affidavit of Support (Form I-864), a sponsor is required to submit Federal income tax returns for the "individual's 3 most recent taxable years." The memo instructs that this phrase corresponds to the three tax years directly preceding the signing of the I-864. Therefore, if the sponsor signed the form on January 3, 2004, he/she should submit tax returns for 2000, 2001, 2002, as the 2003 return is not due until April 15, 2004. The memo instructs officers to use the sponsor's employment information submitted at the time of filing when determining if the sponsor has the ability to support the foreign national. If there is reason to question the validity of this information, an officer may update it during interviews, or request an RFE for updated employment information.
Employment Letter Validity -- The guidance states that adjudicators, when reviewing an employment letter, should assume that the employment offer submitted at the time of filing remains valid, unless there is justifiable reason or a change in facts that shows that the job offer is no longer valid. Examples include the petitioner withdrawing the petition, as well as circumstantial changes for the petitioner, e.g. extensive layoffs or bankruptcy. Backlog time, on its own, does not constitute basis for questioning the validity of the job offer.
Ability to Pay Determinations -- On this subject, the memo instructs adjudicators reviewing I-485s to assume that the ability to pay determination at the petition stage continues to be valid unless there is basis for questioning the determination or a change in facts that shows the petitioner no longer has the ability to pay. The memo notes that the time between the visa petition approval and the adjudication of the adjustment does not constitute basis for questioning an employer's ability to pay. In those cases where there is substantiated reason to question the petitioner's ability to pay, a notice of intent to revoke should be issued.
http://pubweb.fdbl.com/news1.nsf/9a...a5fb25ce568aeff585256ea90052dbea?OpenDocument
06/04/2004
June 4, 2004 -- William Yates, USCIS Associate Director for Operations, on May 14, 2004 issued a memorandum that instructs Service Centers that, in the context of an application for adjustment of status, updated information regarding the affidavit of support, employment letters and ability to pay determinations should not routinely be required.
In this most recently released "re-engineering memo," Mr. Yates suggests that Requests for Evidence (RFEs) should not routinely be issued in these matters unless the adjudicator has reason to believe that a change has taken place. Moreover, Mr. Yates states that "the passage of time between the approval of the visa petition and the adjudication of the adjustment of status application does not, without more, normally constitute an articulable basis for questioning" either the validity of a job offer or the petitioner's ability to pay. The memo was issued as a result of the "significantly elevated RFE rate." In terms of the three issues, the memo states the following:
Affidavit of Support -- When filing an Affidavit of Support (Form I-864), a sponsor is required to submit Federal income tax returns for the "individual's 3 most recent taxable years." The memo instructs that this phrase corresponds to the three tax years directly preceding the signing of the I-864. Therefore, if the sponsor signed the form on January 3, 2004, he/she should submit tax returns for 2000, 2001, 2002, as the 2003 return is not due until April 15, 2004. The memo instructs officers to use the sponsor's employment information submitted at the time of filing when determining if the sponsor has the ability to support the foreign national. If there is reason to question the validity of this information, an officer may update it during interviews, or request an RFE for updated employment information.
Employment Letter Validity -- The guidance states that adjudicators, when reviewing an employment letter, should assume that the employment offer submitted at the time of filing remains valid, unless there is justifiable reason or a change in facts that shows that the job offer is no longer valid. Examples include the petitioner withdrawing the petition, as well as circumstantial changes for the petitioner, e.g. extensive layoffs or bankruptcy. Backlog time, on its own, does not constitute basis for questioning the validity of the job offer.
Ability to Pay Determinations -- On this subject, the memo instructs adjudicators reviewing I-485s to assume that the ability to pay determination at the petition stage continues to be valid unless there is basis for questioning the determination or a change in facts that shows the petitioner no longer has the ability to pay. The memo notes that the time between the visa petition approval and the adjudication of the adjustment does not constitute basis for questioning an employer's ability to pay. In those cases where there is substantiated reason to question the petitioner's ability to pay, a notice of intent to revoke should be issued.
http://pubweb.fdbl.com/news1.nsf/9a...a5fb25ce568aeff585256ea90052dbea?OpenDocument