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USCIS Memo : More Denials, Fewer RFEs
The USCIS issued a Memorandum on May 4, 2004, reminding USCIS Regional Directors, Service Center Directors, District Directors, and Officers-in-Charge that immigration regulations do not require a Request for Evidence (RFE) in every instance before issuing a denial. The Memo further describes situations in which the USCIS does not believe an RFE will be required. Although the intent of the Memo may be to expedite processing of cases, we have some concern that this may result in more denials, without affording the employer or applicant an opportunity to respond to an RFE.
Evidence of Clear Ineligibility Will Result in a Denial
Immigration regulations provide that a case may be denied when there is clear evidence of ineligibility. These situations include applicants under age eighteen who file for naturalization, persons who file I-130s but do not have qualifying relatives, and petitioning companies seeking to file L-1 petitions that have no relationship to any foreign company abroad. Further examples included in the Memo were H1B petitions filed on behalf of someone who does not have the required degree or equivalency, E-1 or E-2 petitions for persons who are not nationals of qualifying treaty countries, or employers seeking to file H2B petitions for persons who have already been in the U.S. in H2B status for three years or longer.
It is critical for petitioners, beneficiaries, and applicants to submit the required evidence proving eligibility for the immigration benefits sought at the time of filing. Otherwise, under this new Memo the petition or application may be denied outright, without an RFE. If a person is not eligible for the immigration benefit sought, then it would make sense that the petition or application should be denied, but sometimes there may be typographical errors in dates of birth, etc, that could be clarified with an RFE response. This option is no longer available.
Where the Document Does not Establish Clear Eligibility
The Memo advises adjudicators that an RFE is not required if the record appears complete. The noteworthy example here is an I-140 petition. The Memo indicates that, while there can be a number of documents the petitioner may choose to submit to show its financial ability to pay an employee's salary, the USCIS adjudicator is not required to issue an RFE as long as the petitioner sent at least one of the required documents. If the adjudicator does not believe that the particular document establishes the ability of the sponsoring employer to pay the I-140 employee or beneficiary the prevailing wage, then the adjudicator may deny the case without an RFE's requesting additional evidence from the employer of its ability to pay.
In many cases, due to the burdens of obtaining each financial record and concern for the privacy of such information, employers or petitioners are reluctant to provide every financial document that could prove the employer's ability to pay the required prevailing wage upfront. Petitioners and applicants will need to rethink this position to avoid I-140 or other petition or application denials due to insufficient documentation as viewed subjectively by a particular USCIS examiner or adjudicator.
When is the RFE Required?
An RFE is required under regulations when initial evidence is missing. Initial evidence is defined as the evidence specified in the regulations, and on the application or petition and its accompanying instructions. Otherwise, RFE issuance is discretionary.
What to do if a Case is Denied
In many instances, if a case is denied, the petitioner or applicant may file a Motion to Reopen or Motion to Reconsider. Most motions must be filed within 30 days of the denial and require an additional filing fee. If the Motion is denied and the petitioner or applicant decides to file an appeal with the Administrative Appeals Office (AAO), then the AAO may take another year or longer to finally adjudicate the case. The fastest and easiest solution for many petitioners and applicants would be to re-file the petition or application, with a new filing fee, and submit all documents up front to avoid the denial. It is better to err on the side of over documentation with this recent Memo.
Conclusion
We at The Law Office of Sheela Murthy believe that, with this Memo, the USCIS is exploring an avenue to reduce the time it takes to process cases and to reduce its case backlogs. When USCIS examiners issue RFEs, it is time-consuming, expensive, and slows the entire adjudications process. This Memo, however, is disappointing since it may result in some USCIS examiners denying cases in which the documents submitted are insufficient to clearly result in an approval, instead of simply issuing an RFE. This is particularly troubling for the many applicants who file for immigration benefits without the assistance of attorneys. Their only avenue to correct deficiencies in their documentation is through responding to RFEs. This option may no longer be available for such applicants. We encourage each MurthyDotCom and MurthyBulletin reader to seek the advice of a qualified immigration attorney prior to any filing with the USCIS, considering the importance of immigration benefits, particularly in light of this recent Memo.
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