USCIS Changes Policies Related To Requests For Evidence And Notices Of Intent To Deny

On July 13, 2018, US Citizenship and Immigration Services (USCIS) issued new guidance, effective on September 11, 2018, that provides adjudicators with broader authority to issue case denials. Under the guidance, USCIS officers may exercise greater discretion to deny applications, petitions or requests when there is insufficient evidence to establish benefit eligibility, rather than issue a Request for Evidence (RFE) or Notice of Intent to Deny (NOID). The agency's announcement rescinds its 2013 guidance on the same topic and arrives only two weeks after similarly publicizing updates to its Notice To Appear guidance.

In light of recent USCIS policy changes regarding denials and deportations, the following steps may mitigate adverse actions when requesting an immigration benefit:

Be Clear About the Legal Basis of the Immigration Benefit or Request As USCIS will continue to issue statutory denials, applications and petitions must clearly state the legal basis for the immigration benefit or request at hand. Without a clear basis and evidence, USCIS adjudicators may deny the case rather than issue a RFE or NOID, which traditionally offered an opportunity to further explain the legal rationale in question. As examples, the USCIS guidance describes cases that will be denied: waivers that lack sufficient evidence, requests for programs now terminated and instances where an official document or evidence is missing, such as for an I-485 Adjustment of Status application. Overall, a clear legal basis and corresponding evidence is necessary upfront. Barebones filings are no longer acceptable even in exigent situations such as in the instance of a visa retrogression. Provide a Legal Roadmap to Minimize Gaps in RFE Responses and Offer a Comprehensive Reply Responses to RFEs should be as thorough and comprehensive as possible. As the new guidance instructs USCIS adjudicators to describe all additional evidence needed within one RFE, petitioners might include a clear roadmap within the RFE response that demonstrates how the case meets its regulatory criteria. As USCIS will heighten its scrutiny to determine whether an RFE response contains sufficient evidence, an outline of the response's documents more easily references exhibits for the reader. Without a clear roadmap and corresponding evidence within an RFE response, USCIS may deny the case. Keep Relevant Public Information Accurate and Current Remember that USCIS adjudicators can refer to any...