‘No- RFE Memo’ Goes Into Effect Tomorrow (9/11/2018)

Dear Readers, viewers and listeners,

The dreaded ‘no-RFE’ memo goes into effect tomorrow. Of all dates, USCIS chooses September 11th as the start date of such a drastic policy change. Not sure who came up with this date as there is no real difference between a Monday (like today) and Tuesday. But here we are.  We will have a podcast on this topic soon on the new “Tahmina Talks Immigration with Seattle Globalist’s Alex Stonehill,”  hope you will watch out for it!

So, what applications does the memo affect? The memo affects  “all applications, petitions, and requests, except for Deferred Action for Childhood Arrivals (DACA) adjudications, received after that date.”  That means, all family-based, employment-based, naturalization and basically any other type of application. In other words, all my clients and all of you reading this with pending or future applications will be affected, unless you are a DACA applicant. 

How will we see the effects? USCIS notes that “If all required initial evidence is not submitted with the benefit request, USCIS, in its discretion, may deny the benefit request for failure to establish eligibility based on lack of required initial evidence. Examples of filings that may be denied without sending an RFE or NOID include, but are not limited to:  Waiver applications submitted with  little to no supporting evidence; or Cases where the regulations, the statute, or form instructions require the submission of an official document or other form of evidence establishing eligibility at the time of filing and there is no such submission. For example, an Affidavit of Support (Form I-864), if required, was not submitted with an Application to Register Permanent Residence or Adjust Status (Form I-485).”

In my opinion, it is hard to predict how this will all play out. The example of ‘all required initial evidence’ makes it sound rather simple. For example, in an adjustment of status case, if one does not submit passport size photographs, that will now likely be a ground for denial.

My simple response to this is If the government thinks something is missing- then the action should not be a denial- but a rejection of the case so that the client can refile without forfeiting hefty USCIS filing fees.  A denial means that USCIS will keep the fees of the case and essentially deprive the applicant due process to correct the problem. And how will they expand on this prong? Will they deny because of typos too? In my view, this is hugely problematic.  But the bigger problem I see is the second prong of not submitting “other form of evidence establishing eligibility’.

In the H1b context for example, USCIS is sending onerous RFEs (request for further evidence) questioning employers, employees and specialty occupation issues. With each new RFE, the questions continue to get even more burdensome.  A recent H1b RFE I received wanted names and contact details of all businesses at the same address as my client’s business. I can tell you that I  personally do not know all the other businesses in my office building and would have a hard time getting contact details for them all. How can I possibly expect my client to know all of that? Is it a good use of my clients’ time gathering that information? Why is this level of scrutiny even necessary? In a different H1B RFE, I felt the USCIS had already drafted the denial in my case because the requests were arbitrary and the language suggested no matter what we say the decision is predetermined.  Immigration lawyers around the country are seeing RFEs and denials with language we have never seen before. My concern is whether USCIS will deny such cases without RFEs anymore. It is very hard to predict but will likely start seeing the effects soon enough.

What is my suggestion at this point in transition? Yes, we have to be even more careful than before.  But we also need to get ready to file more lawsuits for arbitrary denials curtailing one’s expectation to fair and reasonable adjudication and due process. I will likely be asking my contract attorney friends about the basic principles of contract law-by filing an application and paying USCIS filings (which are not cheap!), does an applicant create a contract with USCIS which accepts the consideration (the fees) and thus have a reasonable expectation to proper adjudication?

“Requisites for Contract Formation (Elements)

Agreement: One party must offer to enter into an agreement, and the other party must accept the terms of the offer

Consideration: Something of value received or promised, to convince a party to agree to the deal

Contractual Capacity/ competent parties: Both parties must be competent to enter into the agreement;

Legality: The contract’s purpose must be to accomplish some goal that is legal and not against public policy;

Genuineness of Assent (Arguably part of agreement): The apparent consent of both parties must be genuine; and

Form: The agreement must be in whatever form (e.g., written, under seal, etc.) the law requires.”

In my opinion, there may be grounds to challenge such denials depending on the facts of the case. It will be important to look at all your options should you receive such a denial. And if you do receive a denial based on this new policy, please let us know! Information is everything, esp. with new trending issues. You can either comment on this post or send a private message.

More to come soon and thanks for reading.

Tahmina