Recently, the USCIS issued a new memo regarding the issuance of Request for Evidence (RFE's) and Notice
of Intent to Deny (NOID's). The stated purpose of the memo was to replace a
prior memo that gave guidance that RFE's "should be avoided if possible".
This new memo seems to encourage not only the issuance of RFE's but, also
reminds the Service examiners that they can deny cases without even issuing an
RFE if in the examiner's judgment, they believe that "there is no
possibility that additional information or explanation will cure the deficiency".
This last reminder is what scares many of us who routinely deal with Service
Center examiners. The legal knowledge that they must possess in reviewing a
variety of types of petitions for countless types of companies and
positions is often overwhelming. Regularly it seems that RFE
responses are necessary to educate the examiner on the law, point out
facts already included in the evidence or explain common practices of American
business. In the past 2 weeks alone, we have had RFE's : questioning
the expiration of MSA's with automatic renewal clauses and a current SOW
referencing the MSA; requesting a tax return when a 10k was submitted in the
context of questioning the ability to pay a 65,000/yr.  wage by a Fortune
500 company with revenues in excess of  3 Billion dollars per year;
requesting a foreign educational evaluation for an individual with a Master's
degree from a well known Pac 10 University; challenging whether an IT project
manager being offered a salary of 135,000/yr was the type of position that
really needed a Bachelor's degree ; and lastly, questioning how a degree
in Computer Science and Engineering qualified an individual for a position
as a .Net Applications Developer.  A lot of money and time is
wasted each week in responding to RFE's that frankly, should've never been
issued in the 1st place but, with that being said, an RFE and an opportunity to
respond and provide an education, is much less expensive and than having to
file a motion to re-open or re-consider after the issuance of a denial. In
addition to the cost factor, when an RFE is issued, for example, in the context
of an H-1b transfer, the individual can continue to work, however, if a denial
is issued, the employment authorized under the portability provisions of AC21
are terminated. We are hopeful that this memo will not encourage those
examiners who are already deeply entrenched in the "culture of No" to use their
discretion to ignore the law and the facts and start issuing denials before
issuing an RFE. Frankly, I am hopeful that the Service Centers ignore this HQ
memo like they ignore so many others.


This post originally appeared on the Hammond Law Group Views blog.