EAH Immigration Blog

USCIS Not Obligated to Issue RFEs and NOIDs in the Case of a Deficient Filing

At the same time that immigration judges are having their discretion restricted, USCIS adjudicators are having their discretion expanded. The governing regulations explicitly provide an adjudicator the discretion to deny a case outright if the record does not establish eligibility for the immigration benefit, or issue a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) to further develop the record. However, the previous policy directed that an adjudicator should issue an RFE unless there was “no possibility” that the deficiency could be cured by the submission of additional evidence, thereby limiting the discretion of adjudicators to an extent.

The new USCIS policy has abandoned that limitation and restored full discretion to USCIS adjudicators. “This policy is intended to discourage frivolous or substantially incomplete filings used as ‘placeholder’ filings and encourage [those filing] to be diligent in collecting and submitting required evidence. It is not intended to penalize filers for innocent mistakes or misunderstandings of evidentiary requirements.” The policy memo cites some possibilities for an automatic denial: waiver cases where the qualifying relative is not properly identified, or submitted with little to no evidence; filings for family members that may not fit in a preference category; filings that do not submit all required documents as provided in the statute, regulations, or form instructions (e.g., a green card application with no I-864 included). The instructions that accompany each form usually include a section on required evidence.

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