U.S. Citizenship and Immigration Services Updates Policy Guidance for Certain RFE’s and NOID’s.

Effective September 11, 2018

The U.S. Citizenship and Immigration Service (USCIS) issued a new policy memorandum that will go into effect September 11, 2018.[1] The USCIS will be granted power to authorize statutory denials when necessary without issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) first.  While most attorneys prepare their cases diligently in order to avoid an RFE or a NOID, in most instances getting an RFE or NOID provides another chance to attorneys and their clients to present evidence in support of their cases.  The new policy eliminates this second chance and makes it likely that cases will get rejected without an opportunity to cure defects in the initial filing.

This policy will apply to all applications, petitions and requests; Deferred Action for Childhood Arrivals (DACA) adjudications are the only exception. Previously, a RFE or NOID would be issued if evidence submitted during the time of filing was not enough to prove eligibility. Only if there was “no possibility” of an approval would a denial then be issued. However, now adjudicators will have the authority to deny a case on “failure to establish eligibility based on lack of required evidence,” without first sending a RFE or NOID. Some examples provided by the USCIS of filings that may be denied under this new policy are as follows:

  • Waiver applications that are submitted without enough supporting evidence.
  • Cases where the required official document or other form of evidence has not been submitted at the time of filing, such as the failing to provide the required Affidavit of Support when filing an Application to Register Permanent Residence.

The USCIS has drafted this policy in hopes to deter people from submitting “frivolous or meritless claims that slow down processing for everyone.”  However, this new guidance now allows for the full discretion of the immigration officer, making the risk for potential denials a real concern.