(a)     General .

(1)     Reasons for Requesting Additional Information .

USCIS issues written notices in the form of a request for evidence (RFE) to request missing initial or additional evidence from applicants or petitioners who filed for immigration benefits.

(2)     Considerations Prior to Issuing RFEs .

RFEs should, if possible, be avoided. Requesting additional evidence or returning a case for additional information may unnecessarily burden USCIS resources, duplicate other adjudication officers’ efforts, and delay case completion.

Initial case review should be thorough. Evidence or information not submitted with the application, but contained in other USCIS records or readily available from external sources should be obtained from those sources first rather than going back to the applicant for information or evidence.

In particular, requests for “discretionary” evidence should be carefully considered. For example, a request for tax returns or other financial information as evidence of the viability of the petitioner’s job offer for an “H” petition might be reasonable if the petitioner is a small start-up company, but would be unreasonable if the petitioner is a Fortune 500 company. AFM Chapters 32.3(d)(bullet #2) , 32.3(g) , 32.6(c) , and 32.6(d) discuss the types of evidence that may indicate whether an entity is a start-up or an established company.

In short, an adjudicator should strive to request the evidence needed for thorough, correct decision-making. An adjudicator should not “fish” for evidence.

If an RFE is needed, the adjudicator must: (1) determine what evidence is lacking and (2) request that evidence.

Occasionally, the additional evidence may raise unforeseen new questions that the adjudicator could not have identified during initial case review. As noted above, adjudicators can generally avoid this situation by conducting a careful initial case review and then issuing a clearly drawn RFE.

USCIS uses discrete timeframes to manage cases once an RFE response is received, rather than starting the case over or in an effort to make up time lost as a result of initial or additional evidence being missing.

(3)     Options in Cases Where Insufficient Evidence Is Submitted .

Whenever a case is received with all required initial evidence and the adjudicator cannot decide the case based on the information submitted, there are five options. Each option requires varying degrees of USCIS resources. Thus, adjudicators should carefully evaluate each option. The available options are:

·     Perform research using such internal sources as those described in Chapter 14 of this manual;

·     Request that the applicant or petitioner submit additional documentary evidence;

·     Interview the petitioner, beneficiary, applicant, or other witnesses;

·     Conduct – if local office policy allows a field examination (see Chapter 17 ); and

·     Execute an investigation.

(b)     Flexible Response Times Permitted When Requesting Additional Evidence .

(1)     New RFE Regulations .

On April 17, 2007, USCIS published “Removal of the Standardized Request for Evidence Processing Timeframe” in the Federal Register . The rule became effective on June 18, 2007.

(2)     Flexible Response Times .

The regulations permit USCIS to assign flexible times for applicants and petitioners to respond to a Request for Evidence (RFE). The significant amendments to the RFE process appear in 8 CFR 103.2(b)(8) , (b)(11) , and (b)(13) , revised AFM Chapters 10.5(a) , (b) , and AFM Appendix 10-9 . Appendix 10-9 sets forth general timeframes for applicants or petitioners to respond to RFEs.

To ensure consistency, adjudicators must follow the standard timeframes, but may reduce the response time on a case-by-case basis after obtaining supervisory concurrence. This discretion should only be used when warranted by circumstances as determined by the adjudicator and the supervisor.

(3)     Maximum Response Times .

The maximum response time is 12 weeks for an RFE. Extensions of time to submit evidence beyond the 12-week limit for RFEs or the 30-day period for NOIDs are not permitted. The regulations state that when an RFE is served by mail, the response is timely filed if it is received no more than three days after the due date. 8 CFR 103.5a(b) . USCIS has determined that as a matter of policy that additional mailing time should be given to applicants/petitioners residing outside the United States. See Appendix 10-9 for standard mailing times. Extensions of time to submit evidence beyond the 12-week limit for RFEs or the 30-day period for NOIDs are not permitted.

(4)     Notice of Intent to Deny (NOID) .

A NOID may be based on evidence of ineligibility or on derogatory information known to USCIS, but not known to the applicant or petitioner. A NOID provides an applicant or petitioner with the opportunity to review and rebut derogatory information of which he or she is unaware.

When a preliminary decision has been made to deny an application or petition based on such derogatory evidence, USCIS must issue a written notice of a NOID to the applicant or petitioner. As noted above, the regulations provide an applicant or petitioner with a maximum of 30 days to respond to evidence upon which a NOID is based.

(5)     Eligibility and Ineligibility Procedures .

(i)     General .

·     If evidence establishes eligibility, USCIS can approve the application or petition.

·     If the Immigration and Nationality Act or regulations require an exercise of discretion, USCIS can approve the application or petition only if the evidence establishes eligibility and warrants favorable discretion.

·     If the evidence establishes ineligibility, USCIS must deny the application or petition.

(ii)     Initial Evidence Submitted But Does Not Establish Eligibility .

In this situation, USCIS can deny the application or petition for ineligibility. Alternatively, in its sole discretion, USCIS may request more evidence to be submitted in the established timeframe, which can be no more than 12 weeks. AFM Appendix 10-9 sets general timeframes for applicants or petitioners to respond RFEs.

(iii)     Initial Evidence Not Submitted .

USCIS can deny the application or petition. Alternatively, in its sole discretion, USCIS may request that the missing evidence be submitted within the established timeframe, which can be no more than 12 weeks. AFM Appendix 10-9 sets general timeframes for applicants or petitioners to respond to RFEs.

(6)     Applicant or Petitioner Responses to RFEs or NOIDs .

(i)     Options .

Within the time specified, applicants and petitioners may respond to an RFE or a NOID in one of three ways:

·     Submit a complete response containing all requested evidence; or

·     Submit a partial response; or

·     Withdraw the application or petition.

(ii)     Requested Materials Must Be Submitted Together .

Applicants or petitioners must submit all requested materials together at one time, along with the original RFE or NOID. However, if an applicant or petitioner submits only some of the requested evidence, USCIS will treat such submissions as a request for a decision on the record.

(iii)     Failure to Respond to an RFE or NOID .

If an applicant or petitioner does not respond to an RFE or a NOID by the required date, USCIS may:

·     Deny the application or petition as abandoned; or

·     Deny the application or petition on the record; or

·     Deny the application or petition for both reasons.

(iv)     Failure to Appear for In-Person Processes .

If an applicant or petitioner does not appear for any required in-person process such as an interview or biometrics capture, USCIS shall summarily deny the application as abandoned.

However, USCIS will not deny the application or petition if, by the appointment time, the applicant or petitioner has submitted an address change notification or a rescheduling request, provided that USCIS concludes that the reason for the request justifies the failure to appear.