USCIS Associate Director of Operations William Yates has issued a memorandum making it much easier for case examiners to deny applications without first issuing a Request for Evidence. Currently, in most cases an examiner will issue such a request before denying a case.

According to the memo, "In certain instances adjudicators unnecessarily issue an RFE prior to making a final decision on a petition or application. It is unclear how this practice evolved and it has resulted in a process that significantly affects limited CIS resources, increases processing delays, and confuses petitioners and applicants. Further, the current regulations at 8 CFR lO3.2(b)(8).do not require RFE issuance in every instance prior to adjudication of a petition or application.

The memorandum goes on to state that an RFE is not required for every case prior to adjudication and clarifies when an adjudicator may deny an application or petition without issuing an RFE.

According to the new memo, applicants may be denied when there is evidence of clear ineligibility. That might include a case where a naturalization applicant is not old enough, an I-130 case is filed by a relative or other person who does not qualify and other cases where the basic requirements for a benefit are not met.

If an application is submitted with enough evidence to render a decision, an examiner may deny a case based on the evidence submitted. The Yates memorandum offers the following illustration to explain this concept:

"An 1-140 petitioner is required to file initial evidence establishing its ability to pay the beneficiary the proffered wage. 8 CFR 204.5. The required initial evidence as specified in the regulation is copies of annual reports, federal tax returns, or audited financial statements. The petitioner submits a single copy of one of these required documents. On review, the CIS adjudicator determines that these documents do not establish the petitioner's ability to pay. The CIS adjudicator may deny the petition since the applicant has not met his or her burden to establish eligibility for the requested benefit."

Immigration advocates are deeply worried about this memorandum. Immigration examiners requests for evidence often show an examiner either does not understand the law or has not adequately examined the record. For example, it is quite common for an examiner to ask for a document that was actually submitted in an initial application.

Under current procedures, an applicant has an opportunity to address these problems before a denial is issued. And in many cases, an applicant will remain in status while a request for evidence is considered. Under the new system, an applicant who receives a denial inappropriately will usually have just two options. The applicant can file a motion to reopen and reconsider. But such motions frequently take many months. The alternative is to appeal a case and this can take well over a year.

The problems could also be exacerbated by the fact that so many examiners have been hired in recent years and many examiners are inexperienced. The RFE process is seen as one mechanism to cut down on poor decision-making.