USCIS New Guidance on RFEs and NOIDS Takes Effect On September 11, 2018

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USCIS continues to implement its policy of restriction and enforcement

On July 13, 2018, USCIS issued new guidance regarding immigration officers’ discretion to deny a request for an immigration benefit without first issuing a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID). It is scheduled to take effect next Tuesday, September 11, 2018. It supersedes the 2013 guidance that directed USCIS adjudicators to issue RFE or NOID before denying immigration benefit sought by an applicant or petitioner. 

In essence, the new policy, by restoring “full discretion” in adjudicators decisions, makes it easy to deny application or petition without first giving applicant or petitioner an opportunity to fix what may be a minor mistake or omission. Even though the policy refers to denial triggers present in “required initial evidence”, it is probably safe to assume that the category of “initial evidence” will be broadly expanded in adjudicators’ discretion given the anti-immigrant rhetoric propagated by the Administration.

USCIS pointed out that this policy will apply to all immigration benefit applications filed with USCIS, including but not limited to, naturalization, family-based petitions, permanent residence applications, etc.  The policy also allows for issuing multiple RFEs when “new lines of inquiry” are opened by the response to first RFE.

Notably, USCIS expressed that it now will be “talking” to other agencies to verify the information presented in the petition.   In particular, “apart from RFEs, officers have the discretion to validate assertions or corroborate evidence and information by consulting USCIS or other governmental files, systems, and databases, or by obtaining publicly available information that is readily accessible. See 8 USC 1357(b). For example, an officer may, in the exercise of discretion, verify information relating to a petitioner’s corporate structure by consulting a publicly available state business website. As another example, an officer may attempt to corroborate evidence relating to an individual’s history of nonimmigrant stays in the United States by searching a nonpublic, U.S. government database. If relevant, any such additional evidence should be placed in the Record of Proceeding according to the National Background, Identity, and Security Check Operating Procedures Handbook (NaBISCOP) and standard operating procedures (SOPs), unless specifically exempted from inclusion, as is the case for classified materials.”

Coupled  with a June 28, 2018 memo mandating USCIS to issue Notices to Appear (NTA) in cases when benefit sought is denied and alien is out of status at the time of the denial, the direction USCIS is taking clearly is indicative of the major shift in immigration policy, from its initially welcoming service-oriented purpose to restrictive, repelling, enforcement-based system.   This shift creates a chilling effect for anyone considering either immigrating to the US for the first time or applying to extend already existing status.  

During these challenging times, it is important as ever to seek out and work with an experienced, thoughtful and competent immigration attorney. The risks involved with proceeding per se are greatly outweighing the cost benefits of avoiding legal fees as in – likely – most instances in the current environment. Even an innocent mistake in filing may not only lead to a denial of immigration petition or application but also result in ending up in Immigration Court for removal (deportation) proceedings.

Have questions about how the new guidance on RFEs and NOIDS might impact your case? Contact our Boston-based immigration law firm for an assessment today at (800) 488-5352.