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Immigration Law Blog

Tuesday, July 24, 2018

USCIS Updates Standards for Issuance of Requests for Evidence and Notices of Intent to Deny Petitions

On July 13, 2018, the USCIS posted a Policy Memorandum (PM), PM-602-0163 providing guidance to all USCIS employees regarding their discretion to deny an application, petition, or request without initially issuing a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID) when required original evidence on record failed to establish eligibility or was not submitted as requested.  The new PM is effective September 11, 2018 and applies to all applications, petitions, and requests apart from Deferred Action for Childhood Arrivals (DACA) adjudications received after that date.

Where the previous June 2013 Policy Memorandum (2013 PM) addressed policies for the issuance of RFEs and NOIDs upon submission of evidence at the time of filing that did not establish eligibility as well as implemented a “no possibility” policy, which limited the application of an adjudicator’s discretion, the policy in the new PM will now remove the “no possibility” policy and reestablish complete discretion to deny applicants, petitions, and requests without initially issuing an RFE or NOID, as appropriate.

In addition, the purpose of the new PM is to deter incomplete and/or inconsequential case filings that may be used as “placeholders.”  Hence, USCIS says, the new guidance is further intended to encourage petitioners, requestors, and applicants to be persistent with respect to submitting required/requested evidence.  It claims the new policy is not meant to penalize them for unintended errors/mistakes or miscomprehension of required evidence.  Nor will the new PM change the RFE and NOID policies and practices that apply to the adjudication of DACA requests.

Based on USCIS’ regulations, it will continue to issue statutory denials when appropriate without first issuing an RFE or NOID when there is no legal basis for what is being sought or if a request that is no longer valid has been applied for (for example, a program has been discontinued). 

Furthermore, if initial evidence that is required is not submitted with the benefit request, USCIS, in its discretion, may deny the benefit request for failure to establish eligibility based on lack of required initial evidence. For example, these denials devoid of sending RFEs/NOIDs might include the following:

  • Waiver applications requiring evidence of extreme hardship to a qualifying relative where applicant is claiming extreme hardship to another person with no evidence of them being a qualifying relative; or
  • Visa petitions that are family-based filed by family members under erroneous categories - usually those not authorized via statute.

The new PM revises Chapters 10.5(a) and (b) of the USCIS AFM (Adjudicator’s Field Manual) and encompasses an “Additional Considerations” portion, which can be found here: https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/AFM_10_Standards_for_RFEs_and_NOIDs_FINAL2.pdf



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