1. USCIS'
Internal Memos
for Request For Evidence
USCIS has issued two
Memorandums reminding 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.
These Memos further describe situations in which the USCIS does not believe an
RFE will be required.
Although the intent of these Memos
may be to expedite processing of cases, there are some concern that this may
result in more denials, without affording the employer or applicant an
opportunity to respond to an RFE. With these Memos, 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.
The
first RFE memo on May 2004
states that an application or petition may be approved or denied without a
Request For Evidence or Notice Of Intent To Deny in some specific instances.
An application or petition may be denied if there is clear evidence of
ineligibility, notwithstanding the lack of initial evidence.
Ineligibility exists when the adjudicator can be sure that an applicant
or petitioner cannot meet a basic statutory or regulatory requirement, even if
the filer were to be given the opportunity to present additional information.
Another instance in which this is possible is a case in which all of the
required evidence has been submitted and the case is approvable.
An applicant or petitioner must establish eligibility for the requested
benefit, but when eligibility has been established, the case should be approved.
The second
RFE memo on February 2005 states that if all of the required
evidence has been submitted, then a case is approvable. An applicant or
petitioner must establish eligibility for the requested benefit, but when
eligibility has been established, the case should be approved. If the record is complete with respect to all of the required
initial evidence as specified in the regulations and on the application or
petition and accompanying instructions, the USCIS adjudicator is not required to
issue a RFE to obtain further documentation to support an approval based on that
record.
2. USCIS'
Regulations for Issuing a Request For Evidence, and How to Make a Decision
of Approval or Denial
The
following rules are from the USCIS internal regulations and memos for issuing RFE and reviewing the RFE
response:
1)
A RFE is most appropriate when a particular piece or pieces of necessary evidence are missing, and 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. The "broad
brush" RFEs tend to generate "broad brush" responses that overburden petitioners, over-document the file, and waste examination resources through the review of unnecessary, duplicative, or irrelevant documents.
2) While it is sensible to use well articulated templates that set out an array of common components of RFEs for a particular case type, it is not normally appropriate to "dump" the entire template in a RFE; instead, the record must be examined for what is missing, and a limited, specific RFE should be sent, using the relevant portion from the template. The RFE should set forth what is required in a comprehensible manner so that the filer is sufficiently informed of what is required. If a filing is so lacking in initial evidence that a "wholesale" RFE from a template seems appropriate, an adjudicator should confirm this with a supervisor before doing so.
3) It can be helpful to petitioners to articulate how and why information already submitted is not sufficient or persuasive on a particular issue. Petitioners can become confused and frustrated when they receive general requests for information that they believe they have already submitted. The effort it takes to assess existing evidence helps either to spur the
petitioner to provide persuasive evidence, or to form the basis of a convincing denial notice in the absence of such new evidence.
4) Upon receipt of response to a RFE, an adjudicator should review all relevant evidence, which may include evidence previously submitted and now supplemented. It is not normally appropriate to review the response without reference to the existing record. Normally, it should be appropriate to approve or deny a case without further RFE. Sometimes, however, a RFE response opens a new line of inquiry requiring a new RFE. In other cases, a RFE response may provide the missing initial evidence, but now the combined record requires notice to the
petitioner why the record appears unpersuasive, so that a Notice of Intent to Deny (NOID) is required. It should be rare to follow a NOID with a new RFE or NOID, rather than approval or denial.
3. It Is
Critical to Submit the Required Evidence
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 these USCIS Memos, the petition or application may be denied
with or without an RFE. If a person is not eligible for the immigration
benefit sought, then it would make sense that the petition should be denied, but
sometimes there may be errors that could be clarified with an RFE
response.
The USCIS advises its adjudicators
that an RFE is not required if the record appears complete. The noteworthy
example here is the "ability to pay" question in an I-140 petition based
on an employer's sponsorship. 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, for 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.
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