Review of Key Points from the CIS Ombudsman Teleconference highlighting the USCIS’ Policy Change on RFE’s and NOID’s

The U.S. Citizenship and Immigration Service (USCIS) issued a new policy memorandum that has gone into effect on September 11, 2018. The USCIS has granted adjudicators authorization to issue statutory denials when necessary without first needing to issue a Request for Evidence (RFE) or Notice of Intent to Deny (NOID).

The American Immigration Lawyers Association has provided highlights of The Citizenship and Immigration Services (CIS) Ombudsman Teleconference [1] on September 6, 2018. This stakeholder teleconference focused on the new USCIS’ policy update on Requests for Evidence and Notices of Intent to Deny. The participants of the teleconference included members of the Department of Homeland Security (DHS), USCIS, and the Office of the CIS Ombudsman.

What is this new policy?

This USCIS Policy update to the issuance of RFE’s and NOIDS, “restores full discretion to adjudicators to issue denials without first issuing a RFE or NOID on statutory bases.”  It allows for USCIS officers to deny an application if the initial evidence was not submitted or does not establish eligibility.

This new memo rescinds the previous June 2013 policy memo, which had instructed adjudicators to first issue an RFE if initial evidence was missing or insufficient (unless there was “no possibility” that additional evidence could help).

Along with this new policy, the USCIS has posted new checklists on their website as an operational tool to guide the public on what initial evidence is required for a particular immigration matter. This new checklist must be taken into consideration along with all statutes, regulations, form instructions, etc.

When will this policy take effect?

This new policy takes effect on September 11, 2018 and will apply to only applications received by the USCIS on or after September 12, 2018. For any case prior to September 12, 2018, it will be reviewed under the prior 2013 policy guidance.

Why has this new policy been issued?

The USCIS claims that the intent of this policy is to discourage “placeholder” or incomplete filings. Under the June 2013 memo, RFE rates in some categories reached as high as 40%. The USCIS felt that this high rate of RFE’s issued was a burden on time and resources and that a balance of priorities was needed.

The USCIS does not intend for this new policy to punish applicants and petitioners who have made minor mistakes or misunderstood the evidence required. Rather, it has been put in place to discourage incomplete filings.

What does this policy NOT impact?

This new policy will not impact Refugee and Asylum filings or DACA-related applications. These filings are exempt from this memo.

This policy will not change the current process for appeals or impact current appeal or motion rights. If an application is denied in error, such as lack of a document that was actually submitted during the initial filing, stakeholders may file an appeal. The options and process for an appeal remains the same.

More About the Process

Adjudicators will treat all applications with the same respect, whether the person is filing alone or with an attorney. If the filing contains the initial evidence, then the adjudicator will review that evidence. If clarification is needed, then an RFE may be issued. The USCIS will track all RFE’s that are issued for initial evidence.

What you need to submit has not changed. You to refer to the new checklists, form instructions, regulations etc. to identify what documentation and evidence will be needed when filing. For innocent mistakes (such as missing the page for a publication in an EB1 petition), the USCIS will ask for that information if needed. Officers are being trained not to penalize for small errors, so in the case that you may be missing a few minor items, you may still receive an RFE.

Each USCIS office has their own process for handling cases. Some require supervisory review before a denial is issued, however some offices do not require this. There are currently no specific guidelines regarding supervisory review.

Note: USCIS has confirmed that medical examinations are not part of the initial evidence required, and do not need to be submitted at the time of filing for the I-485 adjustment of status application.

What is a Statutory Denial?

A statutory denial is when there is no legal basis for the request.

What is a “Placeholder” Filing?

A placeholder filing is when the goal of filing the application is for interim benefit. One example of this is a bridge application for an Employment Authorization Document (EAD) while waiting to file an application for another type of work authorization. The “bridge” petition is not the issue; however, the issue is the lack of documentation in the submitted filing just to “get in line.”