Introduction: USCIS’s RFE and NOID Guidance

On July 13, 2018, the United States Citizenship and Immigration Services (USCIS) published Policy Memorandum (PM)-602-0163, titled “Issuance of Certain RFEs and NOIDs; Revisions to Adjudicator’s Field Manual (AFM) Chapter 10.5(a), Chapter 10.5(b)” [PDF version]. The new PM rescinds in its entirely a prior June 3, 2013 Policy Memorandum on the same subject titled “Requests for Evidence and Notices of Intent to Deny” [PDF version]. It updates Chapters 10.5(a) and 10.5(b) of the USCIS’s AFM.

The new PM deals with cases where an individual submitting an application, petition, or request does not submit sufficient initial evidence to establish eligibility for the benefit sought. It provides binding guidance on USCIS adjudicators for when they may deny such an application, petition, or request without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID).

(Sep. 18, 2018 Update): We have published a supplementary article on comments about the new RFE/NOID policy from the CIS Ombudsman. After reading this article, please see our supplementary article for more information about the policy [see article].

In this article, we will examine the new USCIS guidance. For those interested, please see our opinion piece on the new PM [see opinion blog].

Policy Background

In 2013, the USCIS issued now-rescinded guidance on the issuance of RFEs and NOIDs when the initial evidence submitted in support of an application, petition, or benefit request does not establish eligibility for the benefit sought. The 2013 memo instructed adjudicators to issue RFEs “when the facts and the law warrant.” It additionally instructed adjudicators to issue RFEs unless there was “no possibility” that the submission of additional evidence would cure the evidentiary deficiency. The USCIS stated that the result of the 2013 policy “was that only statutory denials (such as a denial where a nonexistent benefit is requested) would be issued without an RFE or NOID.”

Under the 2013 policy, there were two specific cases where adjudicators were instructed to not issue RFEs:

Where the initial evidence established eligibility in all respects for the particular benefit requested; or
Where the initial evidence established ineligibility in all respects for the particular benefit requested.

In all other cases where the initial evidence in the record did not establish eligibility or ineligibility in all respects, adjudicators were instructed to issue RFEs. In the newly issued PM, the USCIS suggests that this policy was contrary to regulations found in 8 C.F.R. 103.2(b)(8), which provide that an adjudicator has the discretion in cases where the initial evidence in the record does not establish eligibility for the benefit sought to either deny the application, petition, or request outright, or to issue an RFE or NOID (however, note that 8 C.F.R. 208.14(d) exempts asylum applications from denial under 8 C.F.R. 103.2(b)). The USCIS now states that the 2003 guidance “limited the application of the adjudicator’s discretion.” It adds that the burden of proof is on the applicant, petitioner, or requestor to establish eligibility for the benefit sought.

The USCIS listed several benefits that it foresees from its rescission of the “no possibility” policy from 2013 and the implementation of its new policy set forth in the instant PM, which:

Restores full discretion to adjudicators to deny applications, petitions, and requests without first issuing an RFE or a NOID, as appropriate, and in accord with 8 C.F.R. 103.2(b)(8);
Discourages frivolous or substantially incomplete filings used as “placeholder” filings; and
Encourages applicants, petitioners, and requesters to be diligent in collecting and submitting required evidence.

Notwithstanding the PM’s added discretion to deny applications, petitions, and requests without the issuance of an RFE or NOID, the USCIS made clear that its new policy “is not intended to penalize filers for innocent mistakes or misunderstandings of evidentiary requirements.”

Policy: Statutory Denials

The 2013 guidance instructed USCIS adjudicators to issue statutory denials — i.e., where denial is provided for by statute — of applications, petitions, and requests without the issuance of an RFE or NOID. That policy is continued in the instant PM.

The USCIS explained that statutory denials include cases in which “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 USCIS provided two examples of cases in which a statutory denial without the issuance of an RFE or NOID would be appropriate:

An applicant seeks a waiver that requires a showing of extreme hardship to a qualifying relative, but claims extreme hardship to an individual for whom there is no evidence of a qualifying relationship to the applicant.
An individual files a family-sponsored immigrant visa petition on behalf of a relative under a category that is not authorized by statute. (E.g., if a U.S. citizen filed a petition on behalf of his or her grandparent or a lawful permanent resident filed a petition on behalf of his or her sibling.)

In one interesting point, the PM explained that, due to several district court injunctions, requests for Deferred Action for Childhood Arrivals (DACA) must be adjudicated on the same terms and conditions that were in place prior to September 5, 2017 [see article]. Thus, until or unless those injunctions are lifted, the instant PM does not change RFE and NOID issuance policies for DACA.

Policy: Denials Based on Lack of Sufficient Initial Evidence

Under the PM, adjudicators may deny a benefit request if it is not accompanied by all of the required initial evidence. The USCIS listed two examples of cases where the denial of a benefit request without the issuance of an RFE or NOID may be appropriate:

Where an individual submits a waiver application with little or no supporting evidence.
Where the submission of an official document or other form establishing eligibility at the time of filing is required, but such document or form is missing. For example, the USCIS cited to “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).”

The above two cases are just examples of cases where USCIS adjudicators may but is not required to consider a denial without the issuance of an RFE or NOID. The list is not intended to be exhaustive. The broader principle is that discretionary denials without the issuance of an RFE or NOID may be considered in cases where required initial evidence is missing. By implication, this policy does not reach cases where all required evidence is submitted but the filer made a mistake or misunderstood the evidentiary requirements.

Policy: RFEs Should Anticipate All Necessary Evidence

The provisions in this section of the PM restate the USCIS’s pre-existing policy.

The PM notes that the response to an RFE may “open[] new lines of inquiry…” In such cases, a follow-up RFE may be warranted. However, the PM instructs officers to, if possible, “include in a single RFE all the additional evidence they anticipate having to request.” Here, the PM reiterates USCIS’s policy to minimize the number of cases where multiple RFEs are necessary. Additionally, the PM notes that by anticipating all required evidence, adjudicators may minimize denials for failure to establish eligibility for the benefit sought.

The PM notes that the regulations require applicants, petitioners, or requestors to submit all requested material at one time in response to an RFE or NOID. Under 8 C.F.R. 103.2(b)(11), the USCIS treats partial responses to RFEs or NOIDs as a request for a decision on the record. We discuss the regulatory history in this area in a separate article [see section].

Under 8 C.F.R. 103.2(b)(14), the failure to submit evidence in response to an RFE or NOID which precludes a material line of inquiry constitutes a ground for denying the request.

The revised Chapter 10.5(a)(2) of the AFM lists the four things that should be included in an RFE:

1. The RFE should identify the eligibility requirement(s) that the applicant, petitioner, or requestor failed to establish and explain why the evidence that was already submitted was insufficient.
2. The RFE should identify any missing evidence that is specifically required under statute, regulation, or form instructions.
3. The RFE should identify examples of other evidence that the applicant, petitioner, or requestor may submit to establish eligibility.
4. The RFE should request the necessary evidence.

The revised chapter 10.5(b)(4) of the AFM explains that NOIDs “may be based on evidence of ineligibility or on derogatory information known to USCIS, but the applicant, petitioner, or requestor is either unaware of the information or may be unaware of its impact on eligibility.”

Policy: Notifying Applicants of Derogatory Information

The provisions in this section of the PM reiterate USCIS’s pre-existing policy.

In cases where the denial of an application, petition, or request is based on derogatory information of which the applicant, petitioner, or requestor is unaware, 8 C.F.R. 103.2(b)(16)(i) generally requires the USCIS to make the applicant, petitioner, or requestor aware of the derogatory information and offer him or her the opportunity to rebut the information before issuing a denial. The regulations provide for a limited exception when the derogatory information is classified and not authorized for disclosure. The PM makes clear that “[a]ny explanation, rebuttal, or information presented by or on behalf of the applicant, petitioner, or requestor must be included in the record of proceeding.”

Policy: Validating Assertions or Corroborating Evidence and Information Using Government Files

The provisions in this section of the PM reiterate USCIS’s pre-existing policy.

RFEs are not the only way for USCIS adjudicators to validation assertions or corroborate evidence and information. The PM reiterates the USCIS’s policy that adjudicators may “consult[] USCIS or other government files, systems, and databases, or [] obtain[] publicly available information that is readily accessible,” in accord with section 287(b) of the Immigration and Nationality Act (INA). Additional evidence obtained through these methods should be placed in the Record of Proceeding in accord with Government policy, unless specifically exempted from inclusion (e.g., if the materials are classified).

The revised chapter 10.5(a)(2) of the AFM makes clear that a USCIS officer may obviate the need to issue an RFE or NOID if he or she can obtain the requisite information through governmental systems or other external sources. In such cases, the decision on whether to issue an RFE or NOID will depend on the facts and circumstances of the case and the discretion of the adjudicating officer.

Conclusion

The USCIS’s revised policy on RFEs and NOIDs expands the situations in which it may deny an application, petition, or request without issuing an RFE or NOID. The new guidance increases the importance of issuing complete applications, petitions, or requests to the USCIS given that it is now less likely that incomplete applications, petitions, or requests will be denied without the opportunity to rectify the deficiencies. When filing any application, petition, or request with the USCIS, an individual is well-advised to consult with an experienced immigration attorney for a case-specific consultation and guidance throughout the entire process.

Please see my opinion blog on the new PM to learn more about some potential issues that may arise from the policy change for filers [see blog].