IMMIGRATION OFFICERS INSTRUCTED TO DENY CASES OUTRIGHT
by Michael J. Gurfinkel, Esq.

In a memo dated May 4, 2004, from USCIS headquarters in Washington DC, immigration officers were instructed 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".

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, a "request for evidence” (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.

This new memo noted that, "in certain instances adjudicators unnecessarily issue an RFE prior to making a decision on a petition or application”. This practice of issuing an RFE somehow resulted in “processing delays, and confuses petitioners and applicants."

According to the new memo, circumstances where an application or petition can be denied without issuing an RFE include the following:

1. Evidence of clear ineligibility
“Clear ineligibility exists when an applicant or petitioner does not meet a basic statutory or regulatory requirement." Examples include:

-An applicant seeks to file for naturalization, but is under 18 years of age.

-A petitioner files a relative petition, but is not a "qualifying relative", meaning that they do not have the proper relationship to the beneficiary in order to be able to petition the alien.

-A petitioning company seeks to file an L-1 petition, but has no relationship to a foreign company abroad.

A case can also be denied outright based on "clear ineligibility", when the person fails to “meet a basic statutory or regulatory requirement". Examples include:

-An H-1B petition is filed on behalf of a beneficiary whose education documents clearly established that they do not have the required college degree (or equivalent to a college degree) to qualify for H-1B status.

-An E-1 treaty trader or treaty investor petition is filed on behalf of a beneficiary who is not a national of a country with a qualifying treaty with the United States.

2. The record is incomplete
The memo further notes that an applicant or petitioner must establish eligibility for the requested benefit they are applying for. If the “CIS adjudicator determines that the applicant or petitioner has not met his or her burden to establish eligibility for the benefit, the case may be denied.". Examples include:

-An I-140 petitioner (an employer in a labor certification case) is required to file initial evidence establishing its “ability to pay the beneficiary the proffered wage”. According to the regulations, this evidence would include copies of annual reports, federal tax returns, or audited financial statements. If the officer determines that the documents that the employer initially submitted do not establish the petitioner’s ability to pay, the officer may deny the petition, instead of issuing an RFE asking for more financial data showing ability to pay.

The only situation where an RFE is required to be issued is when “initial evidence is missing". In all other instances, such as when the evidence raises underlying questions regarding eligibility, or does not fully establish eligibility, the issuance of an RFE is discretionary. In those cases, the adjudicator may deny the case outright, if the applicant or petitioner has not met the initial burden to establish eligibility for the benefit.

In practice, it is sometimes very difficult to predict what may or may not satisfy an adjudicator’s concerns about a person's eligibility for an immigration benefit. Even when a person submits all the documents specified in the rules and regulations, a particular adjudicator may have a difference of opinion and not think that it is enough. While in the past, an RFE would be issued in order to give the person a "second chance" to establish eligibility, this memo now says the presentation of case must be perfect from the outset, or it will be denied. In those circumstances, it would seem that the only relief available would be a possible motion to reopen or motion to reconsider, if available.

I know that many people felt, in the past, that their case was "simple and straightforward", and they could do it on their own. But with this new memo, if you leave out something, you may not get a second chance to prevail, but might have the case denied immediately. That is why it is now all the more important that a person seeks the advice and assistance of a reputable attorney, to help them handle the case, and make sure the information and documents are complete and properly presented, to increase chances of success.

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