Applications and petitions filed with U.S. Citizenship and Immigration Services on or after Sept. 12, 2018, are subject to the agency’s new policy allowing a denial without first issuing a Request for Evidence, or RFE, or Notice of Intent to Deny, or NOID. The new guidance was outlined in a memorandum issued July 13, 2018, and grants full discretion to adjudicators to deny an application or petition when the evidence initially submitted fails to establish eligibility for the requested benefit. Examples include waiver applications submitted with little or no supporting evidence and family-based adjustment applications filed without a Form I-864, Affidavit of Support. More details about the new RFE and NOID policy are available in CLINIC’s Frequently Asked Questions.

The USCIS Ombudsman’s office hosted a stakeholder teleconference about implementation of the new policy on Sept. 6, 2018. During this call, USCIS announced plans to publish Checklists of Required Initial Evidence for various form types. These checklists are now available for many form types on the USCIS website. According to the agency, they are “optional tool[s]” to use when preparing forms, but they do “not replace statutory, regulatory, and form instruction requirements.”

Other clarification provided on the September 6 stakeholder call included:

• Applications and petitions that were received by USCIS before Sept. 12 will NOT be subject to the new policy. For example, if you filed a “barebones” or “placeholder” Form I-130 before Sept. 12, an RFE should be issued permitting the submission of additional evidence.
• The new guidance does not apply where the statute, regulations or form instructions specifically permit an application to be filed prior to all initial evidence being available. For example, Form I-485 adjustment of status applications filed without medical exams will not be denied without issuance of an RFE. 
• If initial required evidence is missing from an application or petition, adjudicators will consider certain factors in deciding whether the omission was due to an innocent mistake or misunderstanding. USCIS declined to clarify what these factors are, but provided, as an example, missing pages from an applicant’s passport.
• All applications and petitions denied without issuance of an RFE or NOID should contain a specific reason for the denial.

CLINIC is closely monitoring the implementation of the new RFE and NOID policy. Please keep us informed about any applications or petitions you believe have been erroneously denied under this guidance by emailing advocacy@cliniclegal.org.