A May 4, 2004 memorandum from William R. Yates, Associate Director for Operations, U.S. Citizenship and Immigration Services (USCIS), provides clarification and guidance to USCIS adjudicators on when a Request for Evidence (RFE) is not required or should not be issued.  Mr. Yates states that a recent internal review of USCIS practices showed that in certain circumstances adjudicators have "unnecessarily" issued RFEs prior to issuing final decisions on petitions.  These unnecessary RFEs affect limited USCIS resources, increase processing delays, and confuse petitioners and applicants.  Mr. Yates further notes that the regulations at 8 CFR 103.2(b)(8) do not require RFEs to be issued prior to adjudication of an application.

As part of CIS's ongoing backlog reduction initiatives, USCIS plans to amend the relevant regulations at 8 CFR 103.2(b)(8) to address when an RFE is required.  The memorandum serves to provide guidance to adjudicators until such new regulations can be issued.

Clear Ineligibility for a Requested Immigration Benefit - Adjudicators Should Deny without Issuing RFE

The memorandum specifies that an application may be denied if there is clear evidence of ineligibility, and notes that "clear ineligibility exists when an applicant or petitioner does not meet a basic statutory or regulatory requirement."  Cited examples of "basic" statutory ineligibility are: an applicant filing for naturalization who is under 18 years of age; a petitioner seeking to file a Form I-130 who is not a qualifying relative; and a company filing an L-1 petition which has no relationship to a foreign company.

The memorandum further notes that an application may be denied without issuance of an RFE if the petitioner or applicant clearly fails to meet a "substantive" requirement for the requested benefit.  The memo offers the following examples of "substantive" failure to prove eligibility:  an H-1B petition filed on behalf of a beneficiary whose education documents clearly establish that the beneficiary does not have the required degree or equivalency to qualify for H-1B status; an employer filing an H-2B petition on behalf of an H-2B alien who has exceeded the thee-year maximum period of stay in H-2B status.

If Record is Complete - Adjudicators May Deny Without RFE if Petitioner Fails to Prove Eligibility for Benefit

The memorandum notes that under the regulations, the petitioner or applicant bears the burden of proving eligibility for a requested immigration benefit.  If a petition includes all required information specified in the regulations and by the accompanying instructions to the application, the memorandum advises that the record should be considered complete, and CIS adjudicators are not required to issue an RFE to obtain further documentation to support a decision on that record.  Upon review of a complete record, if the adjudicator determines that the petitioner has not proven eligibility for the benefit, the case can be denied. 

Mr. Yates advises that under the regulations, an RFE is required only when "initial evidence" is missing from the application, and specifies that initial evidence is evidence specified in the regulations and accompanying instructions.  However, when initial evidence is submitted, but the evidence raises questions about eligibility or does not fully establish eligibility, issuance of an RFE is discretionary.  Should the CIS adjudicator determine that the applicant has not met its burden of proof of eligibility, the adjudicator may deny the case and not issue an RFE prior to issuing a final decision on the case.

The American Immigration Lawyers Association (AILA) has requested that Mr. Yates issue a clarification of this memorandum, as there is concern that application of this memorandum could lead to denials of large numbers of meritorious applications.  Jackson & Hertogs is carefully tracking AILA's progress in this matter, and will provide updated information and information about any changes to this policy as they become available.

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