November 30th, 2018
USCIS Changes Longstanding RFE and NOID Policy, Making Denials More Likely
In an official Policy Memorandum issued on Friday, USCIS announced that the agency will be changing its longstanding policy on issuing denials without first requesting additional evidence to demonstrate eligibility for the immigration benefit being sought.
Since 2013, USCIS has instructed its adjudicators to issue a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID) when evidence submitted at the time of filing fails to clearly establish eligibility or ineligibility for the benefit sought. This gives the applicant an opportunity to respond, clarify any issues USCIS may have with their application, and submit additional documentation to support their application.
Under the new policy, however, USCIS adjudicators are instructed to deny any applications that fail to establish eligibility in the initial submission. This includes not only denials based on statutory ineligibility, but also denials based on a lack of sufficient initial evidence. The USCIS Policy Memo provides examples of these situations, including waiver applications with little to no supporting hardship evidence, or permanent resident applications that lack a required Affidavit of Support. While an applicant and their counsel could previously expect the opportunity to respond to an RFE or NOID in these and similar cases, it appears that an outright denial will be more likely under the new agency policy.
The new policy goes into effect September 11, 2018, and applies to all applications, petitions, and requests submitted to USCIS after that date.