On July 13, 2018, USCIS issued new policy guidelines for their adjudicators, conferring them the discretion to deny an application, petition, or request for immigration benefits without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID), in instances where the initial evidence is not submitted or if evidence in the record does not establish eligibility. The new policy states “Officers may, but are not required to, issue RFEs or NOIDs, and they retain the discretion to deny a request for ineligibility without issuing an RFE or NOID”. The new guidance retracts the June 3, 2013 Policy Memorandum which authorized an adjudicator to issue an RFE unless there was “no possibility” that the insufficiency in initial evidence could be cured by providing additional evidence. The “no possibility” rule created a scenario where only statutory denials (such as a denial where a non-existent benefit is requested) would be issued without an RFE or a NOID.
The new Policy Memorandum clarifies that the “no possibility” policy is no longer effective. The USCIS Adjudicator, whenever appropriate, has full discretion to deny applications, petitions, and requests without first issuing an RFE or a NOID. The guidance emphasizes that the stricter rule is intended to discourage frivolous or substantially incomplete filings and not to penalize innocent mistakes or misunderstandings of evidentiary requirements. Importantly, the new guidance is set to take effect on September 11, 2018 and will apply to all immigration applications, petitions, and requests received after the effective date.
*It is however to be noted that due to the ongoing cases of Regents of Univ. of California v. DHS et al., 3:17-cv-05211 (N.D. Cal. Jan. 9, 2018) and Batalla Vidal v. Nielsen, 1:16-cv-04756 (E.D.N.Y. Feb. 13, 2018), the new policy guidance will not change the RFE and NOID practices that apply to the adjudication of Deferred Action for Childhood Arrivals (DACA) requests. The new guidance will apply to DACA cases only when the DHS is no longer enjoined by any court order from making changes to DACA policy.*
The new Policy Memorandum will also not affect USCIS practice and regulations regarding issuance of statutory denials or denials based on insufficient Initial Evidence, without issuing an RFE or a NOID first.
Some instances where the issuance of a denial may be appropriate without issuing of an RFE or a NOID first may include:
- Waiver applications that require a showing of extreme hardship to a qualifying relative, but the applicant is claiming extreme hardship to someone else and there is no evidence of any qualifying relative.
- Family-based visa petitions filed for family members under categories that are not authorized by statute.
Denials based on Lack of Sufficient Initial Evidence
In cases where a benefit request is unaccompanied with sufficient initial evidence, USCIS adjudicators hold the discretion to deny such benefit request for failure to establish eligibility based on lack of required initial evidence. Some instances of such denials include:
- Waiver applications submitted with little or no supporting evidence.
- Cases where the regulations, the 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.
To read the full text of the policy memorandum, please click here.