On September 6, 2018, the Office of the CIS Ombudsman hosted a teleconference on the United States Citizenship and Immigration Services (USCIS) policy updates of Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs) that was issued on July 13, 2018.
Our office previously provided an article with information about this new guidance. Below, please find further information and clarifications about this new guidance.
- This new USCIS policy restores full discretion to adjudicators to issue denials without first issuing an RFE or NOID on statutory bases and for frivolous and/or incomplete filings. The policy is intended to discourage incomplete or “placeholder” filings where required evidence is submitted after the original petition/application is filed.
A denial will be made on statutory bases where there is no legal basis for the request. A denial will be issued when a filing is made without the necessary initial supporting evidence. A “placeholder” filing is an application where the goal is to receive something other than the immigration benefit itself or to receive an interim benefit.
This new policy memo is not intended to penalize filers for innocent mistakes or penalize them for misunderstanding the evidence that is needed to establish eligibility. Rather, it is intended to both encourage diligence in submissions as well as discourage incomplete filings and frivolous filings.
- This new USCIS policy took effect on September 11, 2018 and applied to applications received by USCIS on or after September 12, 2018.
Applications received by USCIS before September 12, 2018 were not impacted by this policy change. These applications were subject to the earlier 2013 policy guidance. Therefore, even if USCIS takes a year or more to review a case received prior to September 12, that case will still be reviewed according to the earlier 2013 policy guidance.
- DACA, DACA-related applications, asylum filings, and refugee filings are exempt from the memo.
- USICS posted new checklists on the USCIS website as an operational tool to assist the public regarding what is the initial evidence required for a particular immigration benefit.
USICS posted new checklists on its website to assist the public regarding what is required for initial evidence for particular immigration benefits. However, these checklists are not meant to either replace or change the regulatory requirements. All statutes, regulations, form instructions, and other guidance will still need to be reviewed.
As an example, USCIS confirmed that medical examinations are not required to be submitted as part of the initial evidence at the time of filing the I-485 adjustment of status application with USCIS.
- The memo does not impact or change appeal rights.
If a filing contains initial evidence, the expectation is that adjudicator will review that evidence and will issue an RFE if clarification is needed. USCIS will be tracking RFEs issued for initial evidence as well as RFEs issued for further clarification. Therefore, if an application is denied in error, an appeal can still be filed. The appeal process remains the same as before the memo. The memo does not impact or change appeal or motion rights.
Our offices will keep you up to date regarding any further developments. Please do not hesitate to contact our offices for any questions or concerns you may have regarding this matter.