Introduction

On July 13, 2018, the United States Citizenship and Immigration Services (USCIS) issued Policy Memorandum (PM)-602-0163, titled “Requests for Evidence and Notices of Intent to Deny” [PDF version]. The new PM updated the USCIS’s PM and Adjudicator’s Field Manual (AFM) with new policies on when USCIS officers may deny an application, petition, or request without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID).

On September 6, 2018, the CIS Ombudsman held a stakeholder teleconference about the new policy [PDF version]. In this post, we will discuss the CIS Ombudsman’s guidance on the new policies. Please see our full article on the new RFE and NOID PM before reading this article if you are not yet familiar with the guidance [see article]. This article will pre-suppose familiarity with the underlying PM.

Purpose of the New Policy

The CIS Ombudsman explained the purpose of the PM.

The PM overhauled the USCIS’s previous policies, dating back to 2013, which restricted adjudicators to issuing RFEs or NOIDs instead of straight denials unless there was “no possibility” that the submission of additional evidence could cure the deficiency in the application, petition, or benefit request. The CIS Ombudsman explained that the USCIS found that the “no possibility” rule unduly limited the discretion of adjudicators and “was also inconsistent with the fact that the petitioner, applicant, or requestor bears the burden of proof when requesting an immigration benefit.”

The CIS Ombudsman stated that the purpose of the PM is “to discourage frivolous or substantially incomplete filings used as placeholder filings…” The USCIS believes that the policy will encourage applicants, petitioners, and requestors “to be diligent in collecting and submitting required initial evidence.” It is not, however, intended “to penalize filers for innocent mistakes or misunderstandings of the evidence required to establish eligibility.”

It is worth noting that the policy does not apply to DACA or DACA-related requests so long as certain District Court injunctions remain in effect [see article].

Statutory Denial vs. Lack of Initial Evidence Denial

The CIS Ombudsman explained the difference between a “statutory denial” and a “lack of initial evidence denial.”

A “statutory denial” refers to “any filing situation where the applicant, petitioner, or requestor has no legal basis for the benefit request sought, or submits a request for a benefit or relief under a program that has been terminated.” The CIS Ombudsman provided two non-exhaustive examples of statutory denial scenarios. First, a statutory denial would be required if an applicant sought a benefit where a showing of extreme hardship to a qualifying relative was required, but the applicant claimed no extreme hardship to someone else and/or where there was no evidence of the existence of a qualifying relative. Second, a statutory denial would be warranted in the face of a petitioner’s filing a family-based immigrant visa petition for a family member who is not authorized by statute. For example, since there is no immigrant visa category for grandparents, a family-sponsored petition for a grandparent would be subject to statutory denial. The PM does not change USCIS policies for the statutory denial of petition cases.

A “lack of initial evidence denial” occurs where an applicant, petitioner, or requestor fails to submit all of the requisite initial evidence with the benefit request. The CIS, citing to the PM, provided two non-exhaustive examples of lack of initial evidence denial situations. First, a waiver application accompanied by no supporting evidence would be subject to a lack of initial evidence denial. Second, if regulations, statutes, or form instructions required the applicant to submit an official document, form, or evidence, but the applicant failed to submit such document, form, or evidence, the application may be denied. As an example, the CIS Ombudsman noted that a family-sponsored Form I-485, Application to Register Permanent Residence or Adjust Status, must be accompanied by a Form I-864, Affidavit of Support. Thus, failing to submit the Form I-864 with the Form I-485 could justify a lack of initial evidence denial. The PM was primarily focused on these cases.

Projected Effect of New Policy

The CIS Ombudsman stated that it is USCIS’s position that the new RFE and NOID policy “will allow USCIS to focus resources on evaluating cases rather than on tracking down missing evidence.” To this effect, the CIS Ombudsman stated that “the burden of proof is on the applicant or petitioner to establish eligibility for the benefit sought.”

The CIS Ombudsman reiterated that the PM is “not [intended] to penalize filers for innocent mistakes or misunderstandings of the evidence required to establish eligibility.” This means that not every case where initial required evidence is missing from the petition will result in its denial without the issuance of an RFE or NOID. The CIS Ombudsman stated that “adjudicators should take into account various factors to determine whether the missing evidence is due to an innocent mistake or misunderstanding and to what extent the petitioner or applicant tried to comply with the form instructions and regulatory requirements.”

Projected Effect on Processing Times

The CIS Ombudsman stated that the “USCIS believes [the PM] may improve its ability to efficiently process applications and petitions.” However, what the effect that the new policy has on processing times, if any, remains to be seen.

USCIS Adjudicator Training

The CIS Ombudsman explained that USCIS adjudicators are being provided with “a refresher course on 8 C.F.R. 103.2(b)(8) and how to exercise their discretion under that regulation.” 8 C.F.R. 103.2(b)(8) provides for different ways to dispose of deficient applications, petitions, or benefit requests. The USCIS has already prepared new training materials on the policy.

Review of Denials Under the PM

The CIS Ombudsman noted that “[d]enials based on this [PM] may have additional post-adjudication review.”

On Whether There Are Exceptions For Certain Case Types

The CIS Ombudsman stated that the PM restores discretions to adjudicators in all cases. Thus, “there is no category or case type for which an RFE should be routinely expected, as all filings are adjudicated on their own merits on a case by case basis.”

The CIS Ombudsman explained that applicants, petitioners, and requestors “are expected to be familiar with the requirements for a particular benefit category and to properly document their submission with required initial evidence.” If the filing contains all of the initial evidence required by the applicable form and regulations, then an RFE would be issued in most cases “if additional questions or the need for clarification arises.” If the filing includes evidence that is sufficient to conclusively determine eligibility for the benefit sought, then the adjudicator will generally render a decision.

New Checklists

The USCIS is posting checklists of required initial evidence for each form and classification in order “to assist the public with filing forms.” However, the CIS Ombudsman cautioned that “these checklists do not replace or change statutory or regulatory requirements,” and that members of the public should carefully review the regulatory requirements and form instructions before filing a form with the USCIS. The checklists are intended to be helpful tools for those who already understand all of the form requirements.

No Coordination With Other Policy Updates

The CIS Ombudsman stated that the PM is being implemented without reference to any specific policy, but in a manner consistent with other USCIS policies.

Tracking RFEs

The USCIS will track and distinguish between RFEs that are issued to ameliorate a lack of required initial evidence and RFEs that are issued to request additional evidence in order to make a decision. Under the PM, USCIS officers will be trained to carefully review filings and only issue RFEs in cases where “it will help them make a final decision.” In cases where the USCIS officer can conclusively make a final decision without an RFE, he or she should do so.

No Change to Procedures for Questioning RFE Issued in Error

The CIS Ombudsman made clear that there is no change to the process available to an applicant, petitioner, or requestor if he or she believes than an RFE was issued in error. In this case, the individual should contact the USCIS to explain the situation as he or she would have done prior to the effective date of the PM.

No Limitation on Motion and Appeal Rights

The PM in no way limits existing motion and appeal rights.

Conclusion

It is important to understand what the PM does do and does not do.

The PM does not change any substantive requirements for USCIS applications, petitions, and benefit requests. A filer is required to include all of the same documentation and supporting evidence that he or she would have been required to include prior to the effective date of the PM.

However, the PM means that some cases where an RFE or NOID would previously have been issued relating to a deficient application, petition, or benefit request may now result in an outright denial.

The effect of the PM is that it is now more important than ever to submit complete filings to the USCIS. Filers can no longer safely assume that an RFE or NOID will be issued in cases where the submission omits some or all required evidence. The USCIS has firmly placed the burden on filers to submit applications, petitions, and requests with all of the required initial evidence.

Those filing forms with the USCIS should seriously consider working with an experienced immigration attorney. An experienced attorney will have a thorough understanding of the requirements for the applicable USCIS form and will help ensure that all of the required initial evidence is submitted. An attorney can assist an applicant, petitioner, or requestor in identifying, locating, and obtaining the evidence that will best support the application, petition, or request at issue and assist with any case-specific complications.