Beginning September 12, 2018, applications and petitions filed with the U.S. Citizenship and Immigration Services (USCIS) will be subject to the agency’s new policy allowing a denial without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (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. Read CLINIC’s Frequently Asked Questions about the new RFE and NOID guidance here.

On September 6, 2018, the USCIS Ombudsman’s office hosted a stakeholder teleconference about implementation of the new policy. During this call, the USCIS announced that it will publish on its website a Checklist of Required Initial Evidence for each form type. However, the agency noted that these checklists do not replace statutory or regulatory requirements. Other clarification provided on the stakeholder call included:

• Applications and petitions received by the USCIS before September 12 will NOT be subject to the new policy. For example, if you filed a “barebones” or “placeholder” Form I-130 before September 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 will be 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.