The New USCIS Memo on RFEs and NOIDs

The New RFE Memo

The July 13, 2018, RFE Policy Memorandum supersedes prior guidance and takes effect on September 11, 2018. The announced USCIS guidance encourages adjudicators to deny a request for an immigration benefit without first issuing a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID).

Under the new policy USCIS adjudicators may deny an application or petition without issuing an RFE or NOID. For example, rather than giving the filer the opportunity to fix what might be a simple filing error, adjudicators can deny a benefit if any of the required initial evidence is missing from the filing and keep the filing fees(s). Filer's would need to refile the application or petition, repay steep immigration fees, lose employment, travel opportunities, and/or their place in the heavily backlogged visa queue, and possibly miss a critical filing date.

Prior USCIS Policy instructed adjudicators to issue an RFE if initial evidence was missing or if the evidence submitted fell short of the applicable standard of proof, unless the adjudicator determined there was "no possibility" that additional evidence might cure the deficiency.

USCIS Trend to Discourage Legal Immigration

Immigration law is already one of the most complex and unforgiving administrative laws. On or after September 11, 2018, all applicants and petitioners who file immigration benefit applications with USCIS, including applications for naturalization, family-based immigrant petitions, temporary work visa petitions, employment based immigrant petitions, and permanent resident applications,

This is the latest effort to shift USCIS away from its service-oriented mission and turn it into another enforcement component of DHS, contrary to the will of Congress, and to the Homeland Security Act of 2002, which mandated USCIS focus on benefits adjudications and leave immigration enforcement to CBP and ICE.

This new policy memorandum is another brick in the administration's invisible wall to slow and restrict legal immigration to the United States by making it harder for immigrants to apply legally for immigration benefits.

By making the legal immigration process more difficult and uncertain, the new policy harms U.S. citizens seeking to sponsor relatives through the family-based system, individuals seeking asylum and humanitarian protection in the United States, permanent residents applying for naturalization, and U.S. companies seeking to hire and retain top talent from across the globe.

Terminology:

An RFE is a written notice issued by USCIS to request missing initial or additional evidence from applicants or petitioners who have filed for an immigrant benefit.

A NOID is a written notice issued by USCIS notifying the applicant or petitioner of the agency's intent to deny the immigrant benefit requested and providing the applicant or petitioner the opportunity to explain why a denial is not merited.