On July 13, the U.S. Citizenship and Immigration Services (USCIS) released a Policy Memorandum (PM). This update focuses on the issuance of “Certain Request for Evidence (RFE) and Notice of Intent to Deny (NOID).”
According to the official PM, the policy update provides guidance to USCIS adjudicators regarding their discretion to “deny an application, petition or request without first issuing a RFE or NOID if initial evidence is not submitted or if the evidence in the record does not establish eligibility.” This memo does not change the law or regulations, but rather instructs officers on how and when to issue RFEs and NOIDs.
USCIS Rescinds 2013 Guidance
The July 2018 PM rescinds, in its entirety, the June 3, 2013, USCIS policy memo “Requests for Evidence and Notices of Intent to Deny.” The 2013 policy centered around the issuance of RFEs and NOIDs when evidence was submitted at filing time, but did not establish eligibility for the benefit sought.
The 2013 policy stated RFEs should be issued when the law and facts warrant. But it also said an adjudicator should issue an RFE or NOID before denying a case “unless there was no possibility that the deficiency could be cured by submission of additional evidence.”
The effect of the 2013 “no possibility” policy was that only denials required by law (such as a denial where a nonexistent benefit is requested) would be issued without first issuing an RFE or a NOID. This new PM changes this policy on how those filings, as well as filings lacking required initial evidence, should be treated.
New Policy Overview
The new PM confirms that officers will continue issuing statutory denials when appropriate, when the petitioner or requestor does not have legal basis for the request (benefit) being sought. The PM then adds two new instructions to adjudicators:
- If all required initial evidence is not submitted with the application, officers have the discretion to deny the application based on lack of required initial evidence without first issuing an RFE or NOID. This would not impact cases involved in litigation when subject to other protocols, such as DACA cases.
- If an adjudicator finds adverse or derogatory information when attempting to verify presented evidence through publicly available information, or through government files, systems and database, the adjudicator must make the applicant aware of the problem if the information is not classified on national security or other grounds. Also, prior to denying such a case the officer must provide the applicant with the opportunity to respond to the new information and including this evidence in the Record of Proceedings, the official immigration file.
As it is GIA’s standard policy to include all required evidence in the initial case submission to USCIS, the law firm anticipates the impact on Envoy customers to be slight. This policy is more likely to impact individuals who are unable to obtain certain required evidence at the time of filing time-restricted applications. GIA will consult and advise impacted customers on a case-by-case basis as the reasons for why evidence is not available is expected to vary significantly.
According to the USCIS, this updated guidance is effective Sept. 11, 2018. It will apply to all applications, petitions and requests received after that effective date.
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About the Author
Prior to joining Envoy Global, Inc. Allison Kranz practiced immigration law. She was a Managing Attorney at Maney & Gordon, P.A. and an Associate Attorney at Ogletree Deakins. In these roles she gained significant experience handling all aspects of corporate/employment-based immigration law and created strategy to address the visa, work, permanent immigration and citizenship goals of her clients. She represented fortune 500 companies in business immigration matters and acquired critical experience in H-1B, L, TN, O and permanent resident cases, as well as U.S. Department of Labor audits. Her immigration law practice emphasized the representation of universities, in addition to the information technology, financial, national security, and healthcare fields.More Content by Allison Kranz