A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Friday, July 20, 2018

USCIS Officers Have Authority to Deny Petitions without RFEs or NOIDs

A recent memo dated July 13th, 2018 has granted immigration officers "full discretion" to deny an application or request without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID). It goes into effect on September 11, 2018. Any applications, petitions, or requests filed afterwards are subject to the procedures described in the memo.

RFEs are issued when a USCIS officer needs more information to properly adjudicate an application with insufficient evidence. NOIDs are sent out when an application has little or no evidence or when derogatory information unknown to the applicant is discovered. The previous policy memo issued in 2013 directed officers to issue an RFE or a NOID unless there is "no possibility" that any further possible evidence would get rid of the deficiency. Unless it was legally impossible to process the request, a RFE was to be issued in cases of insufficient evidence.

This recent memo rescinds this "no possibility" rule, instead giving adjudicators full discretion to deny cases without first issuing an RFE or a NOID. Furthermore, officers may deny an application based on lack of sufficient initial evidence, according to the memo. Not only are officers no longer obligated to issue RFEs in the case of insufficient evidence, they can outright deny the case. 

The memo cites two situations where a denial can be issued without a RFE or NOID based on lack of sufficient initial evidence. The first is when waiver requests have very little or no evidence. The second is in cases when a required official document is not given during initial filing. One such document is the Affidavit of Support, which is needed for family-based permanent residence cases. In this case, an officer is not obligated to send out a RFE for the Affidavit of Support and can deny the case.

Regarding NOIDs, the memo advises officers to continue allowing parties to respond to derogatory information as per regulation.

While the memo gives officers "full discretion", it does not force them to deny every case with the smallest deficiency. Officers will continue to issue statutory denials for requests without any legal basis. An example of this is a citizen petitioning for a family member when the beneficiary is not eligible to be sponsored (e.g., a cousin). In general, it
is difficult to ascertain how officers will use this new authority going forward in adjudicating applications. Still, anyone applying or petitioning for immigration benefits must ensure there are no evidentiary gaps in their submissions. An officer can legally deny the case immediately for any deficiency. 

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