On July 13, 2018, the United States Citizenship and Immigration Services (USCIS) provided a new policy memorandum. According to this new guidance, effective September 11, 2018, USCIS adjudicators will have full discretion to deny applications, petitions, and requests without first receiving a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID), when appropriate.

This new guidance overturns previous guidance from June 3, 2013 titled “Requests for Evidence and Notices of Intent to Deny,” which stated that USCIS adjudicators should issue an RFE unless there was “no possibility” that a deficiency of an application, petition, or request could be cured by submission of additional evidence. This “no possibility” policy in practice limited an adjudicator’s full discretion to issue denials without RFEs and NOIDs to statutory denials (e.g. a denial where a nonexistent benefit is requested).

What is an RFE?

A Request for Evidence (RFE) is a request issued by USCIS when an adjudicator believes that there is not enough evidence to approve the petition, application, or request, but there is possibility for the case to be redeemed with the submission of additional evidence. Prior to the policy change, all applications, petitions, or requests received RFEs unless there was a statutory basis for denial or “no possibility” that a deficiency could be cured with additional evidence.

What is an NOID?

A Notice of Intent to Deny (NOID) is a notice issued by USCIS when an adjudicator believes that the petition, application, or request should be denied, but that additional evidence may be submitted that may lead to an approval of the case. While an RFE is issued when there is uncertainty about whether a petition will be approved, an NOID is issued when there is a likelihood of denial. While an RFE provides a list of additional types of evidence required, an NOID provides a list of reasons for denial.

When is this policy effective?

September 11, 2018.

What is the scope of the policy?

This policy change applies to all applications, petitions, and requests, except for Deferred Action for Childhood Arrivals (DACA) adjudications received after the effective date of the new policy (September 11, 2018). At this time, this policy change does not change the RFE and NOID policies and practices that apply to the adjudication of DACA requests while preliminary injunctions issued by courts in California and New York still remain in effect.

What can be denied without first issuing of an RFE or NOID?

As in the past, USCIS will continue to issue statutory denials, when appropriate, without first issuing an RFE or NOID. A statutory denial includes “any filing 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.” Examples of statutory denials include but are not limited to:

  • 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 the categories that are not authorized by statute.

Effective September 11, 2018, according to this new policy, USCIS will issue denials without first issuing an RFE or NOID for cases that lack sufficient initial evidence submitted with the benefit request, at the full discretion of USCIS. Examples include but are not limited to:

  • Waiver applications submitted with little to 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.
    • g. a family-based or employment-based category 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).

Further considerations about the policy

The new policy also recommends that USCIS officers include in a single RFE all the additional evidence that they anticipate having to request rather than issuing follow-up RFEs after a response to an RFE. Applicants, petitioners, or requestors must submit all of the requested materials together at one time. If only some of the requested materials is submitted, USCIS will consider it to be a request for a decision on the record, and a failure to submit requested evidence will be grounds for denying the request.

According to USCIS Director L. Francis Cissna, this policy change will

“…discourage frivolous filings and skeletal applications used to game the system, ensure our resources are not wasted, and ultimately improve our agency’s ability to efficiently and fairly adjudicate requests for immigration benefits in full accordance with our laws.”

Please do not hesitate to contact our offices for any questions or concerns you may have regarding this matter. Our offices will keep you up to date regarding any further developments.