U.S. Citizenship and Immigration Services (USCIS) issued an updated policy memo with guidance to adjudicators regarding the discretion to deny an application, petition, or request without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) if initial evidence is not submitted or if the evidence in the record does not establish eligibility.
The updated policy was effective September 11, 2018, and applies to most applications, petitions, and requests received after the effective date. Petitions and applications not subject to the policy are those received on or before September 11, 2018; and Deferred Action for Childhood Arrivals (DACA), asylum, and refugee cases.
The previous policy instructed USCIS adjudicators to issue statutory denials without an RFE or a NOID only if there was no legal basis for the benefit requested or the benefit requested was nonexistent. The policy also stated that adjudicators should issue an RFE unless there was “no possibility” that the deficiency could be cured by submission of additional evidence. This provided filers the opportunity to submit additional requested evidence to prove eligibility and achieve case approval. In addition, adjudicators were instructed to issue NOIDS which provide filers the opportunity to rebut evidence of ineligibility or derogatory information that has been discovered by USCIS and may affect eligibility.
The updated policy provides adjudicators discretion to issue denials if they determine a lack of sufficient initial evidence. According to USCIS, the updated policy is not meant to penalize filers for “innocent mistakes or misunderstandings.” Instead, it is intended to deter “frivolous” or “substantially incomplete filings used as placeholder filings.” Still, it is left to the adjudicators’ discretion to “determine whether the missing evidence is due to an innocent mistake or misunderstanding and to what extent the petitioner or applicant tried to comply with the form instructions and regulatory requirements.”
Please contact our office at firstname.lastname@example.org if you have questions about the policy memorandum.