USCIS Officers Have Authority to Deny Petitions without RFEs or NOIDs

A recent memo dated July 13th, 2018 has granted immigration officers "full discretion" to deny an application or request without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID). It goes into effect on September 11, 2018. Any applications, petitions, or requests filed afterwards are subject to the procedures described in the memo.

RFEs are issued when a USCIS officer needs more information to properly adjudicate an application with insufficient evidence. NOIDs are sent out when an application has little or no evidence or when derogatory information unknown to the applicant is discovered. The previous policy memo issued in 2013 directed officers to issue an RFE or a NOID unless there is "no possibility" that any further possible evidence would get rid of the deficiency. Unless it was legally impossible to process the request, a RFE was to be issued in cases of insufficient evidence.

This recent memo rescinds this "no possibility" rule, instead giving adjudicators full discretion to deny cases without first issuing an RFE or a NOID. Furthermore, officers may deny an application based on lack of sufficient initial evidence, according to the memo. Not only are officers no longer obligated to issue RFEs in the case of insufficient evidence, they can outright deny the case. 

The memo cites two situations where a denial can be issued without a RFE or NOID based on lack of sufficient initial evidence. The first is when waiver requests have very little or no evidence. The second is in cases when a required official document is not given during initial filing. One such document is the Affidavit of Support, which is needed for family-based permanent residence cases. In this case, an officer is not obligated to send out a RFE for the Affidavit of Support and can deny the case.

Regarding NOIDs, the memo advises officers to continue allowing parties to respond to derogatory information as per regulation.

While the memo gives officers "full discretion", it does not force them to deny every case with the smallest deficiency. Officers will continue to issue statutory denials for requests without any legal basis. An example of this is a citizen petitioning for a family member when the beneficiary is not eligible to be sponsored (e.g., a cousin). In general, it
is difficult to ascertain how officers will use this new authority going forward in adjudicating applications. Still, anyone applying or petitioning for immigration benefits must ensure there are no evidentiary gaps in their submissions. An officer can legally deny the case immediately for any deficiency. 

AAO grants national interest waiver to commodity supplier

The Administrative Appeal Office (AAO) of the U.S. Citizenship and Immigration Services grants a national interest waiver to a commodity trader/supplier, in a non-precedent decision, after concluding that the applicant's immigration will benefit the U.S. to an extent that outweighs the requirement of labor certification.

At issue was an EB-2 petition filed by a commodity trade and supply business on behalf of its manager, who was also the company's founder and sole employee.  The petition requested that the requirement of labor certification be waived in the national interest of the United States.  The case was filed with the Texas Service Center, which denied the petition after issuing a Request for Evidence (RFE) and also a Notice of Intent to Deny (NOID) to the petitioner.  The petitioner filed an appeal with the AAO.

RFE for proof of national scope
The petitioner is a supplier and distributor of swimming pool plastering materials in the U.S.  The RFE issued by the TSC asked for evidence to show that the benefits of beneficiary's services were national in scope, and also for evidence that he was influential in his field.  In response, the petitioner established that it had 100 customers located in nine different States, nine America suppliers located in four different States and more than four international sources of imported materials.  The beneficiary also maintained that he had a customer base of approximately 80 family businesses and about 23 private companies, all of them relying on him for steady supply of goods, competitive prices and custom credit lines. The petitioner also provided numerous letters from business owners who confirmed that the beneficiary had helped them stay in business.

NOID:  Beneficiary stands out in the field?
Subsequently, the TSC director issued a Notice of Intent to Deny (NOID) to petitioner, finding insufficient evidence to show that the beneficiary's accomplishments distinguish him from others in the field.  The director found the letters submitted not sufficient as they were written by beneficiary's business partners or customers. The director wanted to see more independent opinion about the beneficiary's achievements in order to waive the requirement for labor certification.

The beneficiary responded to the NOID by first observing that labor certification was not realistic, given the fact that he was both the owner of the company and the only employee.  The Labor Department would not likely grant certification to self-employed individuals.  The beneficiary also noted that that USCIS has been proactively reaching out to entrepreneurs, citing the Service Entrepreneurs in Residence initiative as an example.  The beneficiary also submitted a new letter from a senior research analyst which explained that (1) The petitioner's success stems from the beneficiary's ability to identify market fluctuations in markets; (2) In commoditized product business, it is the trust and credibility of the supplier organization that differentiates it from its competitors; (3) A business entity's trust and credibility comes from its representatives; (4) Since the beneficiary is the sole representative of the petitioner, and it would be almost impossible to find any other more qualified personnel to do the beneficiary's job of projecting trust and credibility to customers.

The TSC director ultimately denied the NIW application, after having concluded that beneficiary failed to present sufficient evidence to prove that he stands out among his peers.

AAO grants NIW
The AAO reversed the denial and granted NIW to the beneficiary, noting that the beneficiary's contribution to the filed is through his "transaction of business" rather than product development.  The AAO noted that the beneficiary had helped many small businesses, individually and cumulatively, stay in business. These achievements go above and beyond customer satisfaction and leave a legacy far beyond the beneficiary's own business ventures.  Consequently, the AAO concluded that beneficiary's services outweigh the national interests of labor certification.

There are several points that are worth noting here. First, the beneficiary in this case was a business professional.  It demonstrates that NIW is not just reserved for scientists, researchers or medical professionals.  Secondly, independent experts letters are usually given more evidentiary weight than letters written by colleagues or employers.  Thirdly, small companies (such as the petitioner here) with one or two employees may also file an employment-based petition, although it would be difficult to prove the case.

Common Reasons for Requests for Further Evidence or Denial in H-1B Cases

This past April was a very busy H-1B filing season, with all available numbers being used up within the first five days.  If your case was not selected in the visa lottery, you must consider other options to stay legally in the U.S.  But for the cases that have been accepted for processing, it does not mean that the beneficiary will definitely be granted H-1B status.  The U.S. Citizenship and Immigration Services (USCIS) routinely issues official Requests for Further Evidence (RFE) in pending cases.  If the required evidence is not submitted, the case will be denied. The following are some common reasons for the issuance of RFEs and/or denials:

1)  The H-1B occupation is not a “specialty occupation”:  H-1B visas are issued to professional workers who engage in “specialty occupation,” which normally requires a bachelor’s or higher degree or its equivalent as the minimum requirement to enter the profession.  The employer may also prove that it usually requires a degree or its equivalent for the position, or that the job duties are so complex or unique that it can be performed only by an individual with a degree.

2) The petitioner is not an eligible H-1B employer:  Nowadays, USCIS routinely verify an employer’s corporate and financial information with government and commercial databases such as those provided by Dun & Bradstreet.   RFEs will be issued if the corporate name, identity, address, financial information, etc., do not match with the information provided by these databases.  Newer and smaller companies’ H-1B petitions are particularly vulnerable as they may be viewed as too small to need the services of an H-1B employee.

3) Failure to prove an employer-employee relationship: A January 8, 2010 USCIS policy memo mandates that a traditional common law "employer-employee relationship" must exist between the petitioner and the beneficiary in an H-1B petition during the entire period of H-1B employment.  RFEs are often used to ascertain the existence of such a relationship especially for off-site employment and third-party placements.  Tremendous amount of documentation is usually needed to sufficiently respond to this type of RFEs.

4) Issues with job location: The job location is also an area of focus in many RFEs, as part of inqury into the employer-employee relationship.  The actual job locations must be clearly reported in the Labor Condition Application (LCA).   If the job location is not clear or different from the employer’s office location, or if there are multiple locations, an RFE will likely be issued.

5) Right to control the employee: This issue also relates to the issue of “employer-employee relationship.” USCIS wants to make sure that the employer actually employs and controls the employees rather than just placing them in a “job shop.”  This is a complex question that requires an examination of things such as tax treatment of employees, daily supervision, payroll, tools and equipments used, training, employment contracts, employment benefits, etc.

6) Employer’s ability to pay: Employers are required to pay H-1B employees the required market wages (or actual wages if higher) as stated in the Labor Condition Application.  H-1B jobs are usually professional occupations that command higher salaries than average. If it is not clear from the initial I-129 petition that the employer has sufficient financial resources to pay the required wages, an RFE will be issued.  For smaller companies that do not have sufficient business profits, other evidence must be submitted to satisfy this requirement.

7) H-1B employee’s education and qualifications:  As stated above, H-1B occupations usually require the attainment of a bachelors’ degree or its equivalent in order to enter the profession.  Many jobs also require other qualifications such as previous training and work experience.  Professional jobs may also require state-issued licenses and professional degrees.  If it is not clear from the H-1B petition submitted that the foreign worker processes the required qualifications for the position, a RFE will definitely be issued.

There are other reasons for issuing RFEs and/or denials in H-1B petitions.  In fact, USCIS can actually deny an H-1B petition outright without issuing a RFE first if it is determined that additional evidence will not be possible to overcome the deficiencies in the petition. Sometimes, USCIS also issues a Notice of Intent to Deny (NOID) if there is little or no evidence submitted or if there is a discretionary issue in the case to consider (although the basic requirements are net).  Hence, it is very important to provide appropriate and sufficient evidence when submitting an H-1B petition to avoid a denial.

USCIS Reminds Individuals Affected by Hurricane Sandy of Temporary Immigration Relief Measures

U.S. Citizenship and Immigration Services (USCIS) reminds customers affected by Hurricane Sandy of certain U.S. immigration benefits or relief that may be available to them.

USCIS understands that a natural disaster can affect an individual’s ability to maintain lawful immigration status or obtain certain other immigration benefits. Eligible individuals may request or apply for temporary relief measures, including:

• A change or extension of nonimmigrant status for an individual currently in the United States, even when the request is filed after the authorized period of admission has expired;
• Extension or re-parole of individuals previously granted parole by USCIS;
• Expedited adjudication of off-campus employment authorization applications for F-1 students experiencing severe economic hardship;
• Expedited adjudication of employment authorization applications; and
• Assistance to Legal Permanent Residents (LPR) stranded overseas without immigration or travel documents, such as Permanent Resident Cards (Green Cards). USCIS and the Department of State will coordinate on these matters when LPRs are stranded in places that do not have a local USCIS office.

Where appropriate, USCIS may exercise its discretion to allow for delays in filing resulting from the hurricane. This may include, for example: 

• Assistance to those who have not appeared for an interview or submitted required forms of evidence. You may show how the disrupting event affected your connection to USCIS and your ability to appear or submit documents as required; and
• Assistance to those who have not been able to respond to Requests For Evidence (RFEs) or Notices of Intent to Deny (NOID). USCIS will extend the deadline for individuals to respond to RFEs or NOIDs by 30 days. This will apply to all RFEs and NOIDs with a deadline of October 26 through November 26, 2012. During this time, USCIS will not issue denials based on abandonment of an application or petition.

Visitors traveling under the Visa Waiver Program may visit a local USCIS office for assistance. Please check whether your local USCIS office is open before going. Individuals affected by the hurricane who are at a U.S. airport may contact the nearest U.S. Customs and Border Protection office for assistance.

For more information on USCIS humanitarian programs, visit www.uscis.gov or call the National Customer Service Center at 1-800-375-5283. Hearing-impaired persons can call 1-800-767-1833.

Please check back at www.uscis.gov for any additional information that may follow.

 (Source: USCIS.gov)

Last updated:11/02/2012