Lev Kobrin
04-04-2005, 05:36 PM
The "RFE Memo" Is Rescinded, Re-Drafted And Re-Issued
by Romulo E. Guevera (http://www.ilw.com/lawyers/articles/2005,0405-Guevera.shtm#bio)
In a surprising, yet welcomed action, William R. Yates, USCIS Associate Director of Operations has acceded to the pressures from the immigration bar and the public and rescinded the controversial "RFE Memo" [1] (http://www.ilw.com/lawyers/articles/2005,0405-Guevera.shtm#_1) he issued on May 4, 2004. The RFE Memo embodied the principle that an RFE was not required for every case prior to adjudication. The memo permitted adjudicating officers to deny an application or petition without issuing an RFE if there was evidence of clear ineligibility[2] (http://www.ilw.com/lawyers/articles/2005,0405-Guevera.shtm#_2) or the record was complete.[3] (http://www.ilw.com/lawyers/articles/2005,0405-Guevera.shtm#_3) The new memorandum seeks to alleviate the damage inflicted upon thousands of applicants whose requests for immigration benefits was met with the harshness of outright denials from often renegade adjudicators who used the now defunct RFE memo as an inflexible adjudicatory tool.
Background
The RFE Memo instructed adjudicators that clear ineligibility existed when an applicant or petitioner did not meet a basic statutory or regulatory requirement. For instance, if the applicant or petitioner failed to establish that he or she was eligible to file for the requested benefit, or clearly failed to meet a substantive requirement needed to establish eligibility for the benefit sought.[4] (http://www.ilw.com/lawyers/articles/2005,0405-Guevera.shtm#_4)
If the record was complete with respect to all initial evidence specified in the regulations, on the application/petition, and in the accompanying instructions, the adjudicating officer was not required to issue an RFE to obtain further documentation to support a decision based on that record. The adjudicator was permitted to issue a denial if the applicant or petitioner had not met his or her burden to establish eligibility for the benefit sought.[5] (http://www.ilw.com/lawyers/articles/2005,0405-Guevera.shtm#_5) If the petitioner submitted one of a list of regulatory required documents, and the adjudicator determined that the submitted document failed to establish its burden of proof (e.g., financial ability in employment-based permanent cases), he or she could deny the petition without issuing an RFE.
The RFE Memo also noted that the USCIS was only required to issue an RFE when initial evidence [6] (http://www.ilw.com/lawyers/articles/2005,0405-Guevera.shtm#_6) was missing. In all other instances, when the evidence raised issues regarding eligibility or did not fully establish eligibility, issuance of an RFE was discretionary.
The New RFE Memo[7] (http://www.ilw.com/lawyers/articles/2005,0405-Guevera.shtm#_7)
The New RFE Memo acknowledges that leading up to the issuance of the first RFE Memo in May 2004, the adjudicatory practices of USCIS revealed that unnecessary RFEs were issued. This practice naturally drained the limited resources, increased processing times, and confused petitioners and applicants. Mr. Yates admits that a misimpression was caused by the first RFE memo "that cases could be denied without RFE or NOID even when a RFE or NOID may have given the applicant or petitioner a reasonable chance to resolve adjudicators' concerns about lack of evidence or about apparent ineligibility." Thus, the New RFE Memo embarks upon a re-confirmation that not every case requires an RFE or NOID, but also it guides adjudicators on how to differentiate between RFEs and NOIDs, and when each is appropriate.
Denial with Evidence of Clear Ineligibility
Similar to the first memo, the new guidance focuses on permissible denial without RFE when there is clear ineligibility under 8 C.F.R. § 103.2(b)(:cool:. Clear ineligibility speaks to the inability to meet a basic statutory or regulatory requirement. The examples used to illustrate his point are the same as in the first RFE Memo: A naturalization applicant who is under the age of 18;[8] (http://www.ilw.com/lawyers/articles/2005,0405-Guevera.shtm#_8) an I-130 petition for a grandmother, or niece for whom there are no visa categories;[9] (http://www.ilw.com/lawyers/articles/2005,0405-Guevera.shtm#_9) an L-1 petition where there is no qualifying relationship with a foreign entity.[10] (http://www.ilw.com/lawyers/articles/2005,0405-Guevera.shtm#_10) New examples are also given: an H-1B petition for a factory machine operator is clearly not a specialty occupation; [11] (http://www.ilw.com/lawyers/articles/2005,0405-Guevera.shtm#_11) an E-1 treaty trader or E-2 treaty investor petition for a beneficiary that is not from the treaty country;[12] (http://www.ilw.com/lawyers/articles/2005,0405-Guevera.shtm#_12) and a petition for H-2B status for a beneficiary that has been present in the U.S. over the previous three years without the required six month absence.[13] (http://www.ilw.com/lawyers/articles/2005,0405-Guevera.shtm#_13) In these circumstances, the new RFE Memo states, a denial is warranted without RFE or NOID because any additional evidence, even if requested to the petitioner or applicant, could not cure or perfect the statutory or regulatory deficiency. These cases are one end of the spectrum.
2. Record is Complete and Case is Approvable
On the opposite side of the adjudicatory landscape, Yates point out that where a case contains all of the required evidence in the record, it should be approved if it appears approvable. Under 8 C.F.R. § 103.2(b)(1), approval is warranted when an applicant or petitioner has established eligibility for the benefit sought. The memo indicates that adjudicators were issuing unnecessary RFEs in approvable cases just to find additional support to justify the approval.
On the other hand, Yates explicitly reveals that adjudicators were issuing RFEs "to eliminate all doubt and all possibility for fraud." He cites the "zero tolerance memo" issued by legacy Immigration and Naturalization Service (INS) Commissioner Ziglar in the aftermath of 9/11.[14] (http://www.ilw.com/lawyers/articles/2005,0405-Guevera.shtm#_14) However, Yates reminds adjudicators that the Ziglar memo was rescinded in September 2003. The New RFE Memo directs adjudicators not to issue an RFE or refer the case to the Fraud Detection and National Security (FDNS) approvable cases based on initially evidence simply because they want to make sure no fraud exists.
The Preponderance of the Evidence is the Proper Standard of Review
The New RFE Memo correctly refocuses adjudicators' attention back to the "preponderance of the evidence" [15] (http://www.ilw.com/lawyers/articles/2005,0405-Guevera.shtm#_15) as the standard of review. What the New RFE Memo does not do is actually define the term "preponderance of the evidence" so that adjudicators can be absolutely clear of how to evaluate the record before them.
The Administrative Procedure Act and decisions under that Act define the burden of persuasion as a preponderance of the evidence.[16] (http://www.ilw.com/lawyers/articles/2005,0405-Guevera.shtm#_16) Thus, the standard applies to USCIS proceedings by operation of law. The term is generally construed to mean that approval "demands only 51% certainty," [17] (http://www.ilw.com/lawyers/articles/2005,0405-Guevera.shtm#_17) which is another way of saying it is more likely than not that the evidence supports approval. On the contrary, proof beyond a reasonable doubt requires proof with no less than 98% certainty.
Mr. Yates hints in the new directive that adjudicators were applying a higher standard to the cases. It is quite disturbing to confirm, as practitioners long suspected, that many USCIS adjudicators were scrutinizing cases under the higher standard of proof accorded to criminal proceedings! The new procedural guidance will hopefully end such an inexcusable practice.
См. Продолжение
by Romulo E. Guevera (http://www.ilw.com/lawyers/articles/2005,0405-Guevera.shtm#bio)
In a surprising, yet welcomed action, William R. Yates, USCIS Associate Director of Operations has acceded to the pressures from the immigration bar and the public and rescinded the controversial "RFE Memo" [1] (http://www.ilw.com/lawyers/articles/2005,0405-Guevera.shtm#_1) he issued on May 4, 2004. The RFE Memo embodied the principle that an RFE was not required for every case prior to adjudication. The memo permitted adjudicating officers to deny an application or petition without issuing an RFE if there was evidence of clear ineligibility[2] (http://www.ilw.com/lawyers/articles/2005,0405-Guevera.shtm#_2) or the record was complete.[3] (http://www.ilw.com/lawyers/articles/2005,0405-Guevera.shtm#_3) The new memorandum seeks to alleviate the damage inflicted upon thousands of applicants whose requests for immigration benefits was met with the harshness of outright denials from often renegade adjudicators who used the now defunct RFE memo as an inflexible adjudicatory tool.
Background
The RFE Memo instructed adjudicators that clear ineligibility existed when an applicant or petitioner did not meet a basic statutory or regulatory requirement. For instance, if the applicant or petitioner failed to establish that he or she was eligible to file for the requested benefit, or clearly failed to meet a substantive requirement needed to establish eligibility for the benefit sought.[4] (http://www.ilw.com/lawyers/articles/2005,0405-Guevera.shtm#_4)
If the record was complete with respect to all initial evidence specified in the regulations, on the application/petition, and in the accompanying instructions, the adjudicating officer was not required to issue an RFE to obtain further documentation to support a decision based on that record. The adjudicator was permitted to issue a denial if the applicant or petitioner had not met his or her burden to establish eligibility for the benefit sought.[5] (http://www.ilw.com/lawyers/articles/2005,0405-Guevera.shtm#_5) If the petitioner submitted one of a list of regulatory required documents, and the adjudicator determined that the submitted document failed to establish its burden of proof (e.g., financial ability in employment-based permanent cases), he or she could deny the petition without issuing an RFE.
The RFE Memo also noted that the USCIS was only required to issue an RFE when initial evidence [6] (http://www.ilw.com/lawyers/articles/2005,0405-Guevera.shtm#_6) was missing. In all other instances, when the evidence raised issues regarding eligibility or did not fully establish eligibility, issuance of an RFE was discretionary.
The New RFE Memo[7] (http://www.ilw.com/lawyers/articles/2005,0405-Guevera.shtm#_7)
The New RFE Memo acknowledges that leading up to the issuance of the first RFE Memo in May 2004, the adjudicatory practices of USCIS revealed that unnecessary RFEs were issued. This practice naturally drained the limited resources, increased processing times, and confused petitioners and applicants. Mr. Yates admits that a misimpression was caused by the first RFE memo "that cases could be denied without RFE or NOID even when a RFE or NOID may have given the applicant or petitioner a reasonable chance to resolve adjudicators' concerns about lack of evidence or about apparent ineligibility." Thus, the New RFE Memo embarks upon a re-confirmation that not every case requires an RFE or NOID, but also it guides adjudicators on how to differentiate between RFEs and NOIDs, and when each is appropriate.
Denial with Evidence of Clear Ineligibility
Similar to the first memo, the new guidance focuses on permissible denial without RFE when there is clear ineligibility under 8 C.F.R. § 103.2(b)(:cool:. Clear ineligibility speaks to the inability to meet a basic statutory or regulatory requirement. The examples used to illustrate his point are the same as in the first RFE Memo: A naturalization applicant who is under the age of 18;[8] (http://www.ilw.com/lawyers/articles/2005,0405-Guevera.shtm#_8) an I-130 petition for a grandmother, or niece for whom there are no visa categories;[9] (http://www.ilw.com/lawyers/articles/2005,0405-Guevera.shtm#_9) an L-1 petition where there is no qualifying relationship with a foreign entity.[10] (http://www.ilw.com/lawyers/articles/2005,0405-Guevera.shtm#_10) New examples are also given: an H-1B petition for a factory machine operator is clearly not a specialty occupation; [11] (http://www.ilw.com/lawyers/articles/2005,0405-Guevera.shtm#_11) an E-1 treaty trader or E-2 treaty investor petition for a beneficiary that is not from the treaty country;[12] (http://www.ilw.com/lawyers/articles/2005,0405-Guevera.shtm#_12) and a petition for H-2B status for a beneficiary that has been present in the U.S. over the previous three years without the required six month absence.[13] (http://www.ilw.com/lawyers/articles/2005,0405-Guevera.shtm#_13) In these circumstances, the new RFE Memo states, a denial is warranted without RFE or NOID because any additional evidence, even if requested to the petitioner or applicant, could not cure or perfect the statutory or regulatory deficiency. These cases are one end of the spectrum.
2. Record is Complete and Case is Approvable
On the opposite side of the adjudicatory landscape, Yates point out that where a case contains all of the required evidence in the record, it should be approved if it appears approvable. Under 8 C.F.R. § 103.2(b)(1), approval is warranted when an applicant or petitioner has established eligibility for the benefit sought. The memo indicates that adjudicators were issuing unnecessary RFEs in approvable cases just to find additional support to justify the approval.
On the other hand, Yates explicitly reveals that adjudicators were issuing RFEs "to eliminate all doubt and all possibility for fraud." He cites the "zero tolerance memo" issued by legacy Immigration and Naturalization Service (INS) Commissioner Ziglar in the aftermath of 9/11.[14] (http://www.ilw.com/lawyers/articles/2005,0405-Guevera.shtm#_14) However, Yates reminds adjudicators that the Ziglar memo was rescinded in September 2003. The New RFE Memo directs adjudicators not to issue an RFE or refer the case to the Fraud Detection and National Security (FDNS) approvable cases based on initially evidence simply because they want to make sure no fraud exists.
The Preponderance of the Evidence is the Proper Standard of Review
The New RFE Memo correctly refocuses adjudicators' attention back to the "preponderance of the evidence" [15] (http://www.ilw.com/lawyers/articles/2005,0405-Guevera.shtm#_15) as the standard of review. What the New RFE Memo does not do is actually define the term "preponderance of the evidence" so that adjudicators can be absolutely clear of how to evaluate the record before them.
The Administrative Procedure Act and decisions under that Act define the burden of persuasion as a preponderance of the evidence.[16] (http://www.ilw.com/lawyers/articles/2005,0405-Guevera.shtm#_16) Thus, the standard applies to USCIS proceedings by operation of law. The term is generally construed to mean that approval "demands only 51% certainty," [17] (http://www.ilw.com/lawyers/articles/2005,0405-Guevera.shtm#_17) which is another way of saying it is more likely than not that the evidence supports approval. On the contrary, proof beyond a reasonable doubt requires proof with no less than 98% certainty.
Mr. Yates hints in the new directive that adjudicators were applying a higher standard to the cases. It is quite disturbing to confirm, as practitioners long suspected, that many USCIS adjudicators were scrutinizing cases under the higher standard of proof accorded to criminal proceedings! The new procedural guidance will hopefully end such an inexcusable practice.
См. Продолжение