The following steps generally apply to all cases processed by the adjudications unit within a service center or local office (including all naturalization and nationality applications). Depending upon local procedures, these steps may be handled by a single adjudicator, or they may be broken down according to task with various tasks being handled by different employees.

(a) Case Review .

Each case must be thoroughly reviewed to determine jurisdiction, presence of required supporting documentation, existence of relating files and basic statutory eligibility. If there is a relating A file, whether or not reviewed, endorse the file number on Forms I-94 and the petition or application if they have not already been so noted.

(b) IBIS Checks .

The Interagency Border Inspection System (IBIS) is a multi-agency effort to improve border enforcement and facilitate inspections of applicants for admission into the United States. Its usage was recently expanded to include background investigations on persons seeking immigration benefits. A complete IBIS query also includes a concurrent check of the NCIC Hot Files. An approved NCIC check queries the following databases:

·     Wants and Warrants;

·     Missing Persons;

·     Violent Gang and Terrorists;

·     Protection Order File;

·     Registered Sexual Offender;

·     Secret Service Presidential Protection;

·     Foreign Fugitives;

·     Deported Felons; and

·     Supervised Release File.

At this time, NCIC III checks are not permitted by the FBI in the benefits arena.

IBIS queries are conducted to assist law enforcement agencies to identify risks to the community and/or to national security and to prevent ineligible aliens from obtaining immigration benefits. Employees working with benefit applications in application support centers, asylum offices, district offices, and service centers, who have the required security clearances for the Interagency Border Inspection System (IBIS), and who have been trained and certified, currently conduct IBIS queries as part of the adj udication process. More specific procedural information on IBIS queries is contained in the Immigration Services Division (ISD) IBIS SOP, which is located in Appendix 10-6 of this field manual.

Note 1

Under no circumstances shall classified information or other restricted information be divulged to the applicant, petitioner, or any other unauthorized party (see Chapter 10.19 of this field manual).

Note 2

IBIS records that are not owned by USCIS are covered by the third agency rule. See Chapter 10.12(b)(4) of this field manual. IBIS records should not be disclosed to individuals without proper legal authorization.

(1)     General requirements .

Except as provided in paragraph (b)(2), an application or petition shall not be approved or revalidated until the name (to include aliases) of the petitioner, applicant, beneficiary, and the names of any spouse and children who will derive an immediate benefit through their relationship (without filing a separate application) have been checked against IBIS, in accordance with the procedures set forth in Appendix 10-6 of this field manual. If such a check reveals the existence of relating files, or other information, they shall be obtained and considered before making a determination upon the application or petition.

An IBIS query on a new application/petition must be run within 15 calendar days of initial receipt. In addition to the initial query, an IBIS query must be conducted at any of the following times, if evidence of the IBIS query indicates it is no longer current (i.e. more than 180 days old):

·     At the time of decision;

·     For N-400 cases, prior to the time of the Naturalization Ceremony if more than 90 days have passed since the adjudicative decision;

·     At the time temporary evidence of lawful permanent residence is provided to an alien, such as an I-551 stamp in a passport or an I-551 stamp placed on a Forms I-94 ;

·     Prior to issuing documentation for a benefit (e.g., a Form I-130 approval notice); or

·     At the time documentation of a granted benefit is issued to an alien, such as an Employment Authorization Document or a Form I-512 .

Prior to final decision, checks must be performed on additional names or alternate DOB’s that become known during the adjudicative process. Officers reviewing USCIS files and the results of IBIS checks must determine whether aliases and variations on name spellings appear in the file and if so, initiate IBIS checks on all discovered aliases and name variations.

The Record of IBIS Query (ROIQ) form must be used to record all names that are queried, the date of the query, and the basic result of those queries. A new ROIQ must be completed for each separately filed application.

All names on the ROIQ must have current checks (i.e. no older than 90 days) in order for the adjudication to proceed to final decision. The outcome of the IBIS query is annotated in one of three blocks:

·     IBIS OK indicates there was no match for the search criteria listed.

·     IBIS DNR indicates that although a match exists, it does not relate to the queried name.

·     IBIS REF indicates that the case was referred for resolution of a positive result(s).

Annotations should include the initials, or unique employee ID number, of the person completing the query and the date it was performed. If the checks are completed as part of a batch process, the date the result was posted in Claims History will be annotated in the Batch Number/Date block.

A Resolution Memorandum is used to document the reconciliation of an IBIS positive result. This is a mandatory action completed prior to rendering an adjudicative decision and is annotated in the appropriate box on the ROIQ.

(2)     Exceptions .

The IBIS system does not need to be checked prior to approval with respect to any applicant, beneficiary or dependent if:

·     He or she is under 14 years of age at the time of approval or denial of the application or petition;

·     An IBIS check has been performed and found to be negative on the same application or petition, or a concurrently-filed application or petition, involving such individual within the previous 180 days;

·     He or she is a beneficiary on a nonimmigrant visa petition and the names of the beneficiaries are unavailable at the time of adjudication, e.g., an H-2A petition or an H-2B petition filed in accordance with 8 CFR 214.2(h)(2)(iii) .

(c) Other Records .

A check of the Headquarters records may also be made with respect to the applicant, petitioner or beneficiary, but only when it is believed such a check would produce pertinent information. See Chapter 3(B)(1) of the Records Operations Handbook for information on checking other records.

Any further action that may be required, short of approval of the petition, shall not be delayed while the request for the Headquarters record check is pending.

(d) Adjudication .

The adjudicator must carefully examine the application form and all supporting documents. The examination should address (but not be limited to) the following questions:

·     Is the form complete and signed?

·     Is the applicant or petitioner represented by counsel with Form G-28 on file?

·     Are there any responses which require further explanation or indicate there may be a need for additional documentation?

·     Are all necessary supporting documents present and translated into English, if necessary?

·     Is the beneficiary statutorily eligible for the benefit sought?

·     Are all supporting documents authentic and unaltered?

·     Is there any reason to suspect fraud?

·     Are there any legal precedent decisions or court orders relevant to the case?

·     Are there any ancillary applications which should be filed by the applicant (e.g. a waiver application, adjustment application, advance parole request, or employment authorization request)?

Note

Adjudicators’ should be aware of complying with the particular timeframes when processing cases. See Appendix 10-8 for specific times. [This Note and Appendix 10-8 added 08-09-2006.]

(e) The Burden of Proof .

The burden of proof in establishing eligibility for an immigration benefit always falls solely on the petitioner or applicant. USCIS need not prove ineligibility.

Each application and petition form includes specific evidence requirements necessary for approval. When an applicant or petitioner can establish that certain primary evidence is unavailable, secondary evidence, also in specific forms, may be provided.

Experienced officers become familiar with a wide range of documents submitted as evidence. Sound judgment is required to determine which forms of primary and secondary evidence should be accepted in individual cases. In addition to reliance on past experience, there are sources of information for verifying information discussed in Chapter 14 of this field manual. See Matter of Brantigan, 11 I&N Dec. 453 (BIA 1966).

Strict rules of evidence used in criminal proceedings do not apply in administrative proceedings. Usually, any oral or documentary evidence may be used in visa petition proceedings. Copies of public documents, certified by the person having custody of the originals, are generally admissible. See also Chapter 11 of this manual for a discussion of evidence.

(f) Inspection of Evidence .

[Chapter 10.3(f) update effective June 18, 2007.] The adjudicator can give a petitioner or applicant an opportunity to inspect and rebut adverse evidence used in making a decision. Prior to denying any application or petition based on such evidence, USCIS routinely issues a notice of intent to deny (NOID) letter, explaining the nature of the adverse information. The applicant or petitioner may choose to respond in writing or may ask to inspect the record of proceedings prior to submission of a rebuttal.

A NOID must specify the date by which a response must be received and instruct the applicant or petitioner that a failure to respond may result in a denial. The maximum time to submit a response to a NOID is 30 days. There are no extensions of time beyond the 30 day limit. 8 CFR 103.2(b)(8) , (16) .

Note

See Chapter 10.5 for a detailed explanation of requests for evidence and responses to a notice to deny.

(g) Decision: Approval .

If a case is ready for approval, the adjudicator must stamp the action block with his or her approval stamp and approved “security” ink. In some cases, the officer’s signature is also required.

Depending upon local procedures, a work sheet for clerical action may be completed, or the adjudicator may update the CLAIMS system to initiate generation of an approval notice to the applicant or petitioner and the attorney of record, if any.

In some instances, the adjudicator may manually complete processing. The adjudicator must then forward the case file for disposition: to the file room, the National Visa Center or consular post, or another USCIS office.

Note

In emergent cases, the petitioner may request that a cable be sent to the consular post. The cable formats for such notifications are included as Appendix 10-4 . Each service center has a quality review process which may review some segment of completed cases for proper adjudication.

(h) Decision: Denial .

If a case is to be denied, the adjudicator must so note the action block and prepare the written denial notice. Denials may consist mainly of "boilerplate" paragraphs explaining the legal basis for the adverse decision or they may be entirely original. in all cases, the specific facts of the individual case must be explained in the decision. If a denial is based on precedent decisions, those decisions should be properly cited in the body of the denial notice.

The applicant or petitioner (or representative) must be advised of the action and provided with information concerning his or her right of appeal. Depending upon local procedures, denied cases may be held in suspense until an appeal is filed or the appeal period lapses, or the case file may be sent to another office for follow up action.

Denial decisions are normally sent to a supervisory officer for review and signature prior to mailing. Service of a decision is ordinarily accomplished by routine service as prescribed in 8 CFR 103.5a . Personal service is required only when an adverse action is being initiated by USCIS, such as a rescission or revocation.

(i) Coordinating with ICE on the adjudication of applications and petitions involving individuals in removal proceedings .

Upon notification from ICE that an application or petition pending with USCIS for an individual in removal proceedings must be adjudicated to allow the removal case to move forward, each USCIS field office will endeavor to complete action on the relevant petition or application within 30 calendar days of receiving the necessary A-file(s) if the individual is detained and within 45 calendar days of receiving the A-file(s) if the individual is not detained. If the next hearing in the removal case is scheduled within the 30- or 45-day time frame, USCIS will work with ICE, to the extent possible, to complete action on the petition or application before the hearing date. Field offices will maintain communication with ICE regarding the progress and status of the case.

USCIS will adjudicate all applications and petitions subject to this memorandum according to existing laws, regulations, and USCIS policy, including as they pertain to USCIS's fraud detection and national security responsibilities. If acting on ICE's request to adjudicate a particular application or petition might compromise those responsibilities or adherence to any law, regulation, or policy, USCIS will notify ICE that the adjudication will not be completed within the 30- or 45-day time frame and will keep ICE further apprised about the status of the case.

To the extent ICE currently coordinates directly with USCIS Service Centers with respect to applications and petitions pending at the Service Centers, this guidance does not supersede or amend those arrangements. For example, ICE currently works directly with the Vermont Service Center (VSC) Victims and Crime Unit to expedite processing of self-petitions under the Violence Against Women Act (VAWA), T nonimmigrant applications for victims of trafficking, and U nonimmigrant petitions for victims of certain crimes.