Guidance on New USCIS Policy Denying Petitions without first issuing RFE or NOID

We would like to remind our readers that beginning September 11, 2018, USCIS immigration officers will have the discretion to issue denials without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOIDs).

The new policy was announced in a policy memorandum released during the month of July.

On September 6, 2018, the CIS Ombudsman’s Office provided further details on the new policy:

• The new policy took effect on September 11, 2018 and applies to all applications, petitions, and requests, except for Deferred Action for Childhood Arrivals (DACA) adjudications, filed on or after September 12, 2018.
• Adjudicators now have full discretion to issue denials where the initial evidence submitted does not establish eligibility or there is no possibility of approval based on the evidence submitted.
• The new policy is not meant to penalize those who make innocent mistakes or who misunderstand the requirements establishing eligibility but is intended to promote complete filings, so resources can be allocated to timely adjudicate petitions.
• If the initial required evidence is missing, adjudicators will determine whether this was due to mistake or misunderstanding and to what extent the applicant tried to comply with the instructions and regulatory requirements. If it is determined that the “error” was due to a mistake or misunderstanding, an RFE would be issued instead of an outright denial. USCIS declined to clarify the factors for making this determination, but it provided, as an example, missing pages from an applicant’s passport.
• USCIS will publish optional checklists outlining the initial required evidence for each visa classification. These checklists are intended for information purposes and are not meant to replace or change the regulatory or statutory requirements.
• The new policy does not affect or change appeal rights.
• The new policy does not change the RFE and NOID policies and practices that apply to the adjudication of DACA requests, due to federal court orders.

Within the next months we will be seeing exactly how this new policy will play out. Under the new policy, immigration officers may choose to exercise their discretion and issue a request for evidence (RFE) or Notice of Intent to Deny (NOID). This discretionary power will be exercised on a case-by-case basis.

For more information please visit the USCIS website.