Initial case review should be thorough. Although the burden of proof is on the applicant, petitioner, or requestor, before issuing an RFE or NOID, an officer may assess whether the information needed is available in USCIS databases or systems. Occasionally, certain evidence or information not submitted with the application, petition, or request may be readily accessible in other USCIS records or otherwise available from external sources. If such information is available in USCIS databases or systems, an officer may obtain the information from these sources rather than issuing an RFE or a NOID. Adjudicators 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. 8 USC 1357(b).

An officer should not request evidence that is outside the scope of the adjudication or otherwise irrelevant to an identified deficiency. In general, officers may, but are not required to, issue RFEs or NOIDs, and they retain the discretion to deny a request for ineligibility without issuing an RFE or NOID.

When an RFE is appropriate, it should:

(1) identify the eligibility requirement(s) that has not been established and why the evidence submitted was not sufficient;

(2) identify any missing evidence specifically required by the applicable statute, regulation, or form instruction;

(3) identify examples of other evidence that may be submitted to establish eligibility; and

(4) request that evidence.

The RFE should ask for all of the additional evidence the officer anticipates having to request and state the deadline for response. The officer’s careful consideration of all the apparent gaps in the evidence will minimize the issuance of multiple RFEs or denials for failure to establish eligibility for the benefit sought. In certain instances the evidence provided in response to an RFE may raise eligibility questions that the adjudicator did not identify during initial case review or open up new lines of inquiry. In such a case, a follow-up RFE or a NOID might be warranted. Failure to submit requested evidence which precludes a material line of inquiry, however, will be grounds for denying the request. 8 CFR 103.2(b)(14).

Statutory Denials

Statutory denials should generally be issued without prior issuance of an RFE or a NOID on any application, petition, or request that does not have any basis upon which the applicant, petitioner, or requestor may be approved. This would include any filing in which the applicant, petitioner, or requestor has no legal basis for the benefit/request sought, or a request for a program that has been terminated. Other examples include, but are not limited to:

• Waiver applications that require a showing of extreme hardship to a qualifying relative but the applicant is claiming extreme hardship to someone else and there is no evidence of any qualifying relative;
  
• Family-based visa petitions filed for family members under categories that are not provided by statute based on the claimed family relationship.

Officers should check the applicable policy and operating procedures for additional guidance, as applicable to the particular application, petition, or request. Additionally, cases in any type of litigation or that are subject to any court order or injunction must be addressed under the protocols governing the litigation.^[1] Furthermore, certain form instructions or regulations may permit applicants, petitioners, or requestors to file a form before all required initial evidence is available, or may restrict USCIS’ ability to deny based solely on the submission of limited evidence.

Denials Based on Lack of Sufficient Initial Evidence

In the case of a filing that lacks initial evidence, the application, petition, or request may be denied without issuing an RFE or NOID. Examples of filings in which the issuance of a denial may be appropriate without prior issuance of an RFE or a NOID include, but are not limited to:

• Waiver applications submitted with little to no supporting evidence; or
  
• Cases where the regulations, the statute, or form instructions require the submission of an official document or other form or evidence establishing eligibility at the time of filing and there is no submission. For example, family-based or employment-based categories where an Affidavit of Support (Form I-864), if required, was not submitted with the Application to Register Permanent Residence or Adjust Status (Form I-485).

A NOID may be based on evidence of ineligibility or on derogatory information known to USCIS, but the applicant, petitioner, or requestor is either unaware of the information or may be unaware of its impact on eligibility. When an adverse decision is based on derogatory information that is unknown to the applicant, petitioner, or requestor, generally, an opportunity to rebut that information shall be provided in accordance with 8 CFR 103.2(b)(16)(i). In that situation, a NOID provides an applicant, petitioner, or requestor with adequate notice and sufficient opportunity to respond and the opportunity to review and rebut derogatory information of which he/she/it is unaware. While not required in other situations, a NOID also provides an applicant, petitioner, or requestor with adequate notice and sufficient opportunity to respond to an intended denial on other substantive grounds.^[2]

When a preliminary decision has been made to deny an application or petition and the denial is not based on lack of initial evidence or a statutory denial as discussed in Chapter 10.5(b), and 8 CFR 103.2(b)(16)(i) applies, the adjudicator must issue a written NOID to the applicant, petitioner, or requestor providing up to a maximum of 30 days to respond to the NOID. The NOID must include the required response date.

[1] For example, as of July 13, 2018, due to preliminary injunctions issued by the U.S. District Court for the Northern District of California in Regents of Univ. of California v. DHS et al., No. 3:17-cv-05211 (N.D. Cal. Jan. 9, 2018) and by the U.S. District Court for the Eastern District of New York in Batalla Vidal v. Nielsen, 1:16-cv-04756 (E.D.N.Y. Feb. 13, 2018), USCIS is adjudicating Deferred Action for Childhood Arrivals (DACA) requests on the same terms and conditions in place prior to September 5, 2017. Therefore, the RFE and NOID policies and practices that were in effect as of September 5, 2017 continue to apply to the adjudication of DACA requests while DHS remains enjoined from making changes to the DACA policy. This policy memorandum will apply to DACA or DACA-related requests, however, if and when DHS is no longer subject to these or any future court orders preventing such changes.

[2] Note that this does not apply to filing deficiencies such as signatures, which are subject to the regulations at 8 CFR 103.2(a)(7)(ii) and the policy memorandum, "Signatures on Paper Applications, Petitions, Requests, and Other Documents Filed with U.S. Citizenship and Immigration Services," PM-602-0134.1, dated February 15, 2018, and effective beginning on March 17, 2018.