USCIS RFE and NOID Policy

September 13, 2018

 

8 CFR 103.2(b)(8) is the regulation that governs USCIS' issuance of Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs). The regulation itself has not substantially changed since it was last revised in 2007, but its interpretation and application by USCIS has.

A July 13, 2018 USCIS policy memo rescinded prior USCIS guidance on RFE and NOID issuance. The changes announced by the memo have been codified in revisions to section 10.5 of the USCIS Adjudicator's Field Manual (AFM). The new RFE-NOID policy is effective for all applications and petitions filed after September 11, 2018. USCIS states that the new guidance "restores to the adjudicator full discretion to deny applications, petitions, and requests without first issuing an RFE or a NOID, when appropriate. This policy is intended to discourage frivolous or substantially incomplete filings used as 'placeholder' filings and encourage applicants, petitioners, and requestors to be diligent in collecting and submitting required evidence."

Read the July 13, 2018 USCIS Policy Memo on RFE/NOID Issuance

Background

Begin by reading the RFE/NOID regulation at 8 CFR 103.2(b)(8).

(8) Request for Evidence; Notice of Intent to Deny -

(i) Evidence of eligibility or ineligibility. If the evidence submitted with the benefit request establishes eligibility, USCIS will approve the benefit request, except that in any case in which the applicable statute or regulation makes the approval of a benefit request a matter entrusted to USCIS discretion, USCIS will approve the benefit request only if the evidence of record establishes both eligibility and that the petitioner or applicant warrants a favorable exercise of discretion. If the record evidence establishes ineligibility, the benefit request will be denied on that basis.

(ii) Initial evidence. If all required initial evidence is not submitted with the benefit request or does not demonstrate eligibility, USCIS in its discretion may deny the benefit request for lack of initial evidence or for ineligibility or request that the missing initial evidence be submitted within a specified period of time as determined by USCIS.

(iii) Other evidence. If all required initial evidence has been submitted but the evidence submitted does not establish eligibility, USCIS may: deny the benefit request for ineligibility; request more information or evidence from the applicant or petitioner, to be submitted within a specified period of time as determined by USCIS; or notify the applicant or petitioner of its intent to deny the benefit request and the basis for the proposed denial, and require that the applicant or petitioner submit a response within a specified period of time as determined by USCIS.

(iv) Process. A request for evidence or notice of intent to deny will be communicated by regular or electronic mail and will specify the type of evidence required, and whether initial evidence or additional evidence is required, or the bases for the proposed denial sufficient to give the applicant or petitioner adequate notice and sufficient information to respond. The request for evidence or notice of intent to deny will indicate the deadline for response, but in no case shall the maximum response period provided in a request for evidence exceed twelve weeks, nor shall the maximum response time provided in a notice of intent to deny exceed thirty days. Additional time to respond to a request for evidence or notice of intent to deny may not be granted.

This rule has always given USCIS adjudicators the discretion to decide whether it is appropriate to deny a benefits application outright, or to instead issue an RFE or NOID to give the applicant or petitioner an opportunity to cure deficiencies. What has changed is USCIS' instructions to adjudicators about how to exercise that discretion. Here is a brief history:

  • In 2007, following a series of field memos in 2004, 2005, and 2007, USCIS updated section 10.5 of the Adjudicator's Field Manual (AFM) with a statement that "RFEs should, if possible, be avoided," and that an adjudicator "should not 'fish' for evidence."
  • In 2012, the DHS Office of Inspector General (OIG) published a report titled, "The Effects of USCIS Adjudication Procedures and Policies on Fraud Detection by Immigration Services Officers" [OIG-12-24, January, 2012]. A portion of that report detailed the confusion that both the public and adjudicators were still having regarding when and how RFEs were being used, and recommended that USCIS clarify its policy.
  • USCIS responded with a June 3, 2013 USCIS policy memo that instructed adjudicators to issue an RFE or NOID unless a denial were required by statute, or in cases where the adjudicator determined there was "no possibility that additional evidence available to the individual might cure the deficiency."
  • July 13, 2018 USCIS policy memo rescinded prior USCIS guidance on RFE and NOID issuance, and will revise the language in section 10.5 of the Adjudicator's Field Manual (AFM). Effective for applications and petitions USCIS receives on and after September 12, 2018.

The exercise of discretion

USCIS cannot simply deny an application or petition for no reason. To do so would certainly constitute an abuse of discretion. 8 CFR 103.3(a)(i) states that, "[w]hen a Service officer denies an application or petition filed under §103.2 of this part, the officer shall explain in writing the specific reasons for denial." Adjudicators should also adhere to the standards of AFM 10.7, Preparing Denial Orders.

In addition, the new policy memo leaves untouched AFM section 10.1(c), Initial Evidence Requirements, which still contains the following direction to adjudicators:

"If an application or petition lacks the required initial evidence, USCIS may deny the incomplete application or petition, though adjudicators are urged to exercise this option judiciously, or issue a request for evidence (RFE)."

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