USCIS HEADQUARTERS “CLARIFIES” RECENT “RFE” AND “ABILITY TO PAY” MEMOS- Part 1
by Michael J. Gurfinkel, Esq.

Recently, I wrote about two new memos from the Headquarters of the United States Citizenship and Immigration Service (USCIS), dealing with requests for evidence (RFEs) and an employer’s “ability to pay” the wage in labor certification cases.

(In the past, whenever a petition or application was filed, and the officers/adjudicators felt that there was some information or documentation that was lacking, an RFE would be sent out, asking the petitioner or applicant to submit additional information or documentation supporting their eligibility for the benefit sought, so that the case could be approved.)

In its memo concerning RFEs, USCIS headquarters instructed immigration officers to deny applications or petitions outright, rather than ask for additional information or documentation, in cases where there is “evidence of clear ineligibility”, or “the record is incomplete”.

Naturally, these memos created a lot of concern among immigrants because they seemed to have authorized officers\adjudicators to deny cases outright, such that people would literally have only “one chance” to prove eligibility, and if it was not done right the first time, the case would be denied.

However, during the annual conference of the American Immigration Lawyers Association (AILA) held in Philadelphia, Mr. William Yates, the Associate Director for Operations of the USCIS, spoke on a variety of topics, including the RFE and the ability to pay memos. (It was Mr. Yates who wrote those memos). What he had to say in “clarifying” the purposes and intent of those memos was certainly encouraging. This article will discuss Mr. Yates’ clarification of the RFE memo. In a future article, I will discuss his clarification of the “ability to pay” memo.

RFE Memo:

According to Mr. Yates, the purpose of the RFE memo was to instruct officers to deny outright only those cases which could never be approved or “perfected”, because the alien could never establish eligibility for the benefit sought. An example he gave was that there were about 10,000 family-based petitions filed for aunts, uncles, cousins, and grandparents. Those relatives cannot be petitioned under the law such that there is absolutely no way that these petitions could ever be approved. In these cases, it would simply be a waste of time to issue an RFE, because no additional information or document could establish eligibility for this immigration benefit.

Mr. Yates stated, “What we tried to instruct our officers is that if you can’t perfect the case, you don’t [issue an RFE]. You can issue a denial. However, if a case can be perfected, if there is missing evidence, then an RFE is still appropriate”. He also stated that if he sees a pattern of that memo being misinterpreted by officers (i.e they deny “approvable” cases outright, without issuing RFE’s), he might ultimately decide to withdraw the memo completely. But, at least it is encouraging that the RFE memo was never meant to be a “one shot deal”, for cases which could be approved with additional information or evidence.

We hope that officers/adjudicators will now return things to “normal” in processing their cases, and that despite the apparent language of the RFE memo, and the ability to pay memo, Mr. Yates’ statements provide some much needed clarifications and hope for aliens seeking legal status in the U.S.

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