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(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 .
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).
(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.
(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 .
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).
(3) Maximum Response Times .
The maximum response time is 12 weeks for an RFE. 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.
(4) Notice of Intent to Deny (NOID) .
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.
(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.
Footnotes
[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.
\ afm \ Adjudicator's Field Manual - Redacted Public Version \ Chapter 10 An Overview of the Adjudication Process. \ 10.5 Requesting Additional Information. [Chapter 10.5 update effective September 11, 2018.
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