USCIS Updates Procedures on Issuance of Requests for Evidence and Notices of Intent to Deny
On July 13, 2018, USCIS issued a policy memorandum, providing guidance to adjudicators regarding the discretion to deny an application, petition, or other benefit request without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) if required evidence is not submitted with the initial petition/application package, or if the evidence in the record does not establish eligibility for the benefit sought. This guidance is effective September 11, 2018.
This policy memo rescinds USCIS’s prior policy memo of June 3, 2013. Pursuant to that earlier guidance, adjudicators were to issue RFEs “when the facts and the law warrant,” but they were also instructed to first issue an RFE or NOID, before denying an application, petition, or other benefit request, unless there was “no possibility” that the deficiency could be cured by the submission of additional evidence by the petitioner or applicant. In other words, where the evidence submitted did not immediately establish eligibility or ineligibility, adjudicators were encouraged to first issue an RFE or NOID before adjudicating cases based on the record.
Under USCIS’s new policy, if all required initial evidence is not submitted with the benefit request, USCIS adjudicators may, in their discretion, deny the petition/application/request for failure to establish eligibility, without first issuing an RFE or NOID and providing the requestor with an opportunity to cure the defect.
The policy memo offers only two examples of filings that may be denied without sending an RFE or NOID, namely:
- Waiver applications submitted with little to no supporting evidence; or
- Cases where the regulations, statute, or form instructions require the submission of an official document or other form or evidence establishing eligibility at the time of filing and there is no submission. For example, family-based or employment-based categories where an Affidavit of Support (Form I-864), if required, was not submitted with the Application to Register Permanent Residence or Adjust Status (Form I-485).
To date, these are the only two examples provided by USCIS for when a request may be denied without the issuance of an RFE or NOID, and it therefore remains unclear to what extent adjudicators will apply this new policy. As stated by USCIS, this policy is intended to discourage “frivolous or substantially incomplete filings used as ‘placeholder’ filings and encourage applicants, petitioners, and requestors to be diligent in collecting and submitting required evidence. It is not intended to penalize filers for innocent mistakes or misunderstandings of evidentiary requirements.” USCIS has not yet provided a comprehensive list of additional examples of filings that may be denied without issuance of an RFE or NOID, nor has the Service offered any further guidance on the distinction between “innocent mistakes” and those that may now be fatal to an application or other request. It is clear, however, that this policy gives officers significantly greater discretion to deny applications in cases where the submitted evidence is deficient in any way, without first offering an opportunity to remedy any such deficiencies.
For additional information about how these new policies may impact you, your students, or your employees, contact Whiteman Osterman & Hanna’s immigration attorneys.
***The above information has been provided for educational purposes only and should not be construed as legal advice***