Chapter 6 - Evidence

A. Initial and Additional Evidence [Reserved]

B. Primary and Secondary Evidence [Reserved]

C. Copies vs. Originals [Reserved]

D. Kinds of Evidence [Reserved]

E. Translations [Reserved]

F. Requests for Evidence and Notices of Intent to Deny

Under the regulations, USCIS has the discretion to issue Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs) for immigration benefit requests in appropriate circumstances.[1] USCIS also has the discretion in some instances to issue a denial without first issuing an RFE or a NOID.

An officer should issue an RFE or NOID when the facts and the law warrant; an officer should not avoid issuing an RFE or NOID when one is needed. However, an officer should not issue an RFE or NOID if the officer determines the evidence already submitted establishes eligibility or ineligibility for the request. An unnecessary RFE or NOID can delay case completion and result in additional unnecessary costs to both the government and the benefit requestor.[2]

Generally, USCIS issues written notices in the form of an RFE or NOID to request missing initial[3] or additional evidence from benefit requestors. However, USCIS has the discretion to deny a benefit request without issuing an RFE or NOID. If the officer determines a benefit request does not have any legal basis for approval, the officer should issue a denial without prior issuance of an RFE or a NOID.[4]

1. Evaluating Evidence and Eligibility

Unless otherwise specified, officers should generally follow these principles in each case:

  • Understand the specific elements required to demonstrate eligibility for the benefit request.[5]

  • Understand the standard of proof that applies to the benefit request. In most instances, the benefit requestor must establish eligibility under the preponderance of the evidence standard. Under that standard, the benefit requestor must prove it is more likely than not that the requestor meets each of the required elements.[6]

  • Review all the evidence to determine if each of the essential elements has been satisfied by the applicable standard of proof.

If the officer determines that the benefit requestor is eligible for the benefit requested (all the essential elements have been satisfied by the applicable standard of proof, including but not limited to, when applicable, that a favorable exercise of discretion is warranted), the officer approves the benefit request without issuance of an RFE or NOID.[7]

If the benefit requestor has not established eligibility under the applicable standard of proof, the officer generally issues an RFE or NOID to request evidence of eligibility. However, if the benefit request does not have a legal basis for approval, and the officer determines that there is no possibility that additional information or explanation will establish a legal basis for approval, then the officer generally should deny the benefit request without first issuing an RFE or NOID.[8]

2. Considerations Before Issuing Requests for Evidence or Notices of Intent to Deny

Instead of or in addition to issuing an RFE or NOID, the officer may also:

  • Perform additional research;

  • If not already required for the benefit type, interview the benefit requestor or other witnesses; or

  • Initiate an investigation.

Each option requires varying degrees of resources. Therefore, officers should carefully evaluate each option when deciding next steps.

Performing Additional Research

Although the burden of proof to establish eligibility for an immigration benefit is on the benefit requestor,[9] an officer may assess, before issuing an RFE or a NOID, whether the information or evidence needed is available in USCIS records or systems. Officers have the discretion[10] to validate assertions or corroborate evidence and information by reviewing USCIS (or other governmental) files, systems, and databases, or by obtaining publicly available information that is readily accessible.[11]

For example, an officer may, in the exercise of discretion, verify information relating to a petitioner’s corporate structure by consulting a publicly available government website or corroborate evidence relating to a person’s history of nonimmigrant stays in the United States by searching a U.S. government database.

3. Requests for Evidence

If the benefit requestor either has not submitted all of the required initial evidence[12] for the benefit request, or the evidence in the record does not establish eligibility for the benefit sought, the officer should issue an RFE or NOID requesting such evidence unless the officer determines that there is no legal basis for the benefit request and no possibility that additional information or explanation will establish a legal basis for approval.[13]

Content of RFEs

RFEs should:

  • Identify the eligibility requirement(s) that has not been established and why the evidence submitted is insufficient;

  • Identify any missing evidence specifically required by the applicable statute, regulation, or form instructions;

  • Identify examples of other evidence that may be submitted to establish eligibility; and

  • Request that evidence.

An officer should not request evidence that is outside the scope of the adjudication or otherwise irrelevant to an identified deficiency.

The RFE should ask for all the evidence the officer anticipates needing to determine eligibility and should clearly state the deadline for response.

Avoiding Multiple RFEs

In certain instances, the evidence provided in response to an RFE may raise eligibility questions that the officer did not identify during initial case review or open new lines of inquiry. In such a case, the officer may issue a follow-up RFE or NOID. However, officers should include in a single RFE all the evidence they anticipate needing to determine eligibility. The officer’s careful consideration of all the apparent deficiencies in the evidence minimizes the need for multiple RFEs.

Timeframe for Response

The maximum response time for an RFE is 12 weeks (84 days); regulations prohibit officers from granting additional time to respond to an RFE.[14]

However, the regulations permit USCIS to assign flexible time frames for benefit requestors to respond to an RFE.[15] To ensure consistency, officers should follow 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 officer and the supervisor.

The regulations state that when an RFE is served by mail, the response is timely filed if it is received no more than 3 days after the deadline, providing a total of 87 days for a response to be submitted if USCIS provides the maximum period of 84 days under the regulations.[16]

However, USCIS has determined as a matter of policy that additional mailing time (14 days) should be given to benefit requestors residing outside the United States or when USCIS mails an RFE from an international USCIS field office.

The RFE should clearly state the deadline for response, which includes the extra days for mailed RFEs, when applicable.

Standard Timeframes

In compliance with the regulations, the guidelines in the table below provide standard timeframes for benefit requestors to respond to RFEs.[17] These standard timeframes do not apply to circumstances in which a fixed maximum response time is specified by regulation.[18]

Standard Timeframes for Response to an RFE

When Submitting Evidence Required For

Standard Response Time (Calendar Days)

Additional Mailing Time When Residing Inside the United States

Additional Mailing Time When Residing Outside the United States or When an International Field Office Issues RFEs

Application to Extend/Change Nonimmigrant Status (Form I-539)[19]

30

3

N/A

Application for Provisional Unlawful Presence Waiver (Form I-601A)[20]

30

3

N/A

All other form types, regardless of whether the request is for initial or additional evidence, or whether the evidence is available in the United States or from overseas sources[21]

84

3

14

4. Notices of Intent to Deny

Circumstances Under Which NOIDs are Required[22]

USCIS issues a NOID before denying any immigration benefit requests submitted on the following forms:

  • Application for Determination of Suitability to Adopt a Child from a Convention Country (Form I-800A) based on a mandatory denial ground;[23]

  • Petition to Classify Convention Adoptee as an Immediate Relative (Form I-800) based on a mandatory denial ground;[24] or

  • Application to Register Permanent Residence or Adjust Status (Form I-485) filed by a physician because the physician failed to comply with the conditions attached to his or her national interest waiver.[25]

Derogatory Information Unknown to the Benefit Requestor

In general, USCIS is also required to issue a NOID when derogatory information is uncovered during the course of the adjudication that is not known to the benefit requestor and USCIS intends to deny the benefit request on the basis of that derogatory information.[26] The benefit requestor may be either unaware of the derogatory information or unaware of its impact on eligibility.

When USCIS bases an adverse decision on derogatory information that may be unknown to the benefit requestor, USCIS must provide the requestor an opportunity to rebut that information.[27] A NOID provides a benefit requestor with adequate notice and sufficient opportunity to respond and the opportunity to review and rebut derogatory information not known to the benefit requestor.

Any explanation, rebuttal, or information presented by or on behalf of the benefit requestor must be included in the record of proceeding.

Additional Circumstances Under Which USCIS May Issue NOIDs

While not required in other situations, a NOID also provides a benefit requestor with adequate notice and sufficient opportunity to respond to an intended denial because of a determination of ineligibility.[28]

It is also appropriate for officers to issue NOIDs in the following circumstances:

  • The benefit requestor submitted little or no evidence;[29] or

  • The benefit requestor has met the eligibility requirements for the requested benefit or action but has not established that he or she warrants a favorable exercise of discretion (where there is also a discretionary component to the adjudication).[30]

Content of NOIDs

NOIDs should:

  • Identify the reasons for the intended denial, including the eligibility requirement(s) that has not been established, and why the evidence submitted is insufficient;

  • Explain the nature of the adverse information, if any.

  • Identify any missing evidence specifically required by the applicable statute, regulation, or form instructions;

  • Identify examples of other evidence that may be submitted to establish eligibility; and

  • Request that evidence.

The NOID should also instruct the benefit requestor that a failure to respond may result in a denial and must clearly state the deadline for response.[31]

Timeframe for Response

The maximum response time for a NOID is 30 days.[32]

When a NOID is served by mail domestically, the response is timely if it is received no more than 3 days after the deadline, for a total of 33 days.[33] USCIS has determined as a matter of policy that additional mailing time (14 days) should be given to benefit requestors residing outside the United States or when USCIS mails NOIDs from an international USCIS field office.

The NOID must clearly include the required response date, which includes the extra days for mailed NOIDs, when applicable.

Standard Timeframes

In compliance with the regulations, the guidelines in the table below provide standard timeframes for benefit requestors to respond to NOIDs.[34]

Standard Timeframes for Response to a NOID

When Submitting Evidence Required For

Standard Response Time (Calendar Days)

Additional Mailing Time When Residing Inside the United States

Additional Mailing Time When Residing Outside the United States or When an International Field Office Issues NOIDs

All form types[35]

30

3

14

5. Responses to Requests for Evidence and Notices of Intent to Deny

Within the timeframe specified, benefit requestors may respond to an RFE or NOID in one of three ways:

  • Submit a complete response containing all requested information;

  • Submit a partial response, which is considered a request for a decision on the record; or

  • Withdraw the application or petition.[36]

Requested Materials Must Be Submitted Together

Whether in response to an RFE or a NOID, benefit requestors must submit all requested materials together at one time, along with the original RFE or NOID. USCIS treats any submission partially responding to an RFE or NOID as a request for a final decision on the record.[37] USCIS does not wait for a second response or issue a second RFE simply because a response from the benefit requestor is a partial response.

Failure to Respond to an RFE or NOID

Failure to submit requested evidence that is relevant to the adjudication is grounds for denying the request.[38] If a benefit requestor does not respond to an RFE or NOID by the required date,[39] USCIS may:

  • Deny the benefit request as abandoned;[40]

  • Deny the benefit request on the record; or

  • Deny the benefit request for both reasons.[41]

Footnotes


[^ 1] See 8 CFR 103.2(b)(8). However, certain immigration benefits, such as refugee and asylum applications, are governed by different regulations and procedures regarding RFEs, NOIDs, denials, and failures to appear; therefore, the guidance in this chapter does not apply to these immigration benefits governed by different regulations. The terms “benefit request” and “immigration benefit request,” as used in this Policy Manual part, include, but are not limited to, all requests funded by the Immigration Examinations Fee Account (IEFA). These terms may also refer to forms or requests not directly resulting in an immigration benefit.

[^ 2] For purposes of this Policy Manual part, the terms “benefit requestor” and “requestor” mean the person, organization, or business requesting an immigration benefit from USCIS. In most instances, this will either be an applicant or a petitioner, depending on the request.

[^ 3] See 8 CFR 103.2(b)(1). Each benefit request must be properly completed and filed with all initial evidence required by applicable regulations and other USCIS instructions.

[^ 4] For more information, see Chapter 9, Rendering a Decision, Section B, Denials, Subsection 1, Denials Based on Lack of Legal Basis [1 USCIS-PM E.9(B)(1)].

[^ 5] See the program-specific part of the Policy Manual for more information on eligibility requirements that apply to a particular benefit request.

[^ 6] For more information, see Chapter 4, Burden and Standards of Proof [1 USCIS-PM E.4].

[^ 7] See 8 CFR 103.2(b)(8)(i).

[^ 8] See Chapter 9, Rendering a Decision, Section B, Denials, Subsection 1, Denials Based on Lack of Legal Basis [1 USCIS-PM E.9(B)(1)].

[^ 9] See INA 291. See Matter of Arthur (PDF), 16 I&N Dec. 558 (BIA 1978).

[^ 10] However, under 8 CFR 103.2(b)(17), officers must verify the status of an applicant or petitioner who claims that he or she is a lawful permanent resident by reviewing USCIS records.

[^ 11] See INA 287(b). See 8 CFR 103.2(b)(16)(i).

[^ 12] For applications and petitions for T and U nonimmigrant status (for victims of trafficking and other specified crimes) and Violence Against Women Act (VAWA) benefit requests, USCIS considers any credible evidence relevant to the request. Requestors may submit any credible, relevant, and probative evidence to establish eligibility. See INA 204(a)(1)(J). See INA 214(p)(4). See 8 CFR 103.2(b)(2)(iii). See 8 CFR 204.1(f)(1). See 8 CFR 204.2(c)(2)(i). See 8 CFR 204.2(e)(2)(i). See 8 CFR 214.14(c)(4). See 8 CFR 214.11(d)(2) and 8 CFR 214.11(d)(5).

[^ 13] If there is no legal basis for the benefit request and no possibility that additional information or explanation will establish a legal basis, the officer may deny the request without first issuing an RFE or NOID. See Chapter 9, Rendering a Decision, Section B, Denials, Subsection 1, Denials Based on Lack of Legal Basis [1 USCIS-PM E.9(B)(1)].

[^ 14] See 8 CFR 103.2(b)(8)(iv). In certain circumstances, USCIS may consider responses to RFEs submitted after the due date for response. For example, in response to the Coronavirus (COVID-19) pandemic, USCIS announced that, for a limited amount of time, USCIS would accept responses received within 60 calendar days after the deadline before taking any action. USCIS typically announces such flexibilities on the USCIS website.

[^ 15] See 8 CFR 103.2(b)(8). See 8 CFR 103.2(b)(11).

[^ 16] See 8 CFR 103.8(b).

[^ 17] See 8 CFR 103.2(b)(8)(iv).

[^ 18] For example, USCIS generally provides an applicant for naturalization 30 days (33 if mailed) to respond to an RFE. See 8 CFR 335.7. See Volume 12, Citizenship and Naturalization, Part B, Naturalization Examination, Chapter 4, Results of the Naturalization Examination, Section B, Continuation of Examination, Subsection 1, Continuation to Request Evidence [12 USCIS-PM B.4(B)(1)].

[^ 19] Due to the relatively short processing times required by the Form I-539, a response time of only 30 days applies to RFEs for Form I-539 filings.

[^ 20] Due to the streamlined nature of the provisional unlawful presence waiver process and to avoid long delays in immigrant visa processing, a response time of 30 days applies to RFEs for the Form I-601A. Officers, in their discretion, may increase the response time for the Form I-601A after obtaining supervisory concurrence. This discretion should be used on a case-by-case basis when warranted by circumstances as determined by the officer and the supervisor.

[^ 21] Certain immigration benefits, such as refugee and asylum applications, are governed by different regulations and procedures regarding RFEs, NOIDs, denials, and failures to appear. Therefore, the guidance in this table does not apply to these immigration benefits governed by different regulations.

[^ 22] Certain immigration benefits, such as refugee and asylum applications, are governed by different regulations and procedures regarding RFEs, NOIDs, denials, and failures to appear. Therefore, the guidance in this section does not apply to these immigration benefits governed by different regulations.

[^ 23] See 8 CFR 204.309(a). See 8 CFR 204.309(c).

[^ 24] See 8 CFR 204.309(a). See 8 CFR 204.309(c).

[^ 25] See 8 CFR 245.18(i).

[^ 26] See 8 CFR 103.2(b)(16).

[^ 27] See 8 CFR 103.2(b)(16)(i).

[^ 28] However, if the officer determines that there is no legal basis for the benefit request, the officer generally denies the request. See Chapter 9, Rendering a Decision, Section B, Denials, Subsection 1, Denials Based on Lack of Legal Basis [1 USCIS-PM E.9(B)(1)].

[^ 29] USCIS generally issues RFEs when some required evidence is missing but may issue a NOID if all or most of the required evidence is missing. However, USCIS generally rejects incomplete benefit requests, including those with filing deficiencies, such as missing or invalid signatures. USCIS does not issue NOIDs for such filing deficiencies since the requests were never accepted for adjudicative review and therefore are not subject to approval or denial criteria. See 8 CFR 103.2(a)(7)(ii). See Part B, Submission of Benefit Requests, Chapter 6, Submitting Requests, Section B, Intake Processing [1 USCIS-PM B.6(B)].

[^ 30] For more information, see Chapter 8, Discretionary Analysis [1 USCIS-PM E.8].

[^ 31] See 8 CFR 103.2(b)(13).

[^ 32] See 8 CFR 103.2(b)(8)(iv). In certain circumstances, USCIS may consider responses to NOIDs submitted after the due date for response. For example, in response to the Coronavirus (COVID-19) pandemic, USCIS announced that for a limited amount of time it would accept responses received within 60 calendar days after the deadline before taking any action. USCIS typically announces such flexibilities on the USCIS website.

[^ 33] See 8 CFR 103.8(b).

[^ 34] See 8 CFR 103.2(b)(8)(iv).

[^ 35] Certain immigration benefits, such as refugee and asylum applications, are governed by different regulations and procedures regarding RFEs, NOIDs, denials, and failures to appear. Therefore, the guidance in this table does not apply to these immigration benefits governed by different regulations.

[^ 36] See 8 CFR 103.2(b)(6). USCIS’ acknowledgement of a withdrawal may not be appealed. See 8 CFR 103.2(b)(15).

[^ 37] See 8 CFR 103.2(b)(11).

[^ 38] See 8 CFR 103.2(b)(14).

[^ 39] Applications for asylum are not subject to denial under 8 CFR 103.2(b), like other benefit requests, generally. See 8 CFR 208.14(d).

[^ 40] The benefit requestor may not appeal a denial due to abandonment, but the benefit requestor may file a motion to reopen. See 8 CFR 103.2(b)(15). See Notice of Appeal or Motion (Form I-290B). A new proceeding will not be affected by the withdrawal or denial due to abandonment, but the facts and circumstances surrounding the prior benefit request will otherwise be material to the new benefit request. See 8 CFR 103.2(b)(15). See 8 CFR 1.2 (definition of benefit request).

[^ 41] See 8 CFR 103.2(b)(13).

Current as of October 20, 2021