USCIS Issues Updated Policy Memorandum Giving Officers Full Discretion to Deny Cases Without RFE or NOID

By Roujin Mozaffarimehr

On Friday, July 13, 2018, the USCIS announced its rescission of the long-standing policy memorandum (PM), “Requests for Evidence and Notices of Intent to Deny” (2013 PM) which detailed the parameters surrounding an officer’s discretion to deny applications, petitions, or requests without the issuance of an RFE.[1] In its place, the USCIS has issued the Policy Memorandum, “Issuance of Certain RFEs and NOIDs; Revision to Adjudicator’s Field Manual (AFM) Chapter 10.5(a), Chapter 10.5(b).”[2]

Taking effect on September 11, 2018 the new policy “restores” an officer’s discretion, giving them full discretion “to deny applications, petitions, and requests without first issuing an RFE or a NOID when appropriate.”[3]  Specifically, cases that fail to provide required initial evidence can be denied without the issuance of an RFE at the discretion of the adjudicating officer.  The new policy memorandum rescinds the previous policy in place, in which RFEs were issued “when the facts and the law warrant…and when there was no possibility that the deficiency could be cured by the submission of additional evidence.”[4]

The PM gives examples of filings that may be denied without RFE or a NOID, which 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 of 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 (I-864) if required, was not submitted with the Application to Register Permanent Residence or Adjust Status (Form I-485).[5]

The PM goes on to direct Officers to check current policy and operating procedures for additional guidance, applicable to the particular application, petition, or request.[6] It is unclear if this is to mean officers can issue denials at their discretion based upon their reading of policy memoranda in addition to the regulations, statutes, and form instructions for a particular case.

The PM cites 8 CFR 103.2(b)(8) for the underlying reasoning of this memorandum, stating that the regulations “provides that an adjudicator, under the circumstances described in the regulation, may either deny the application, or request, or issue an RFE or a NOID when the record does not establish eligibility.”[7] What the Service seems to miss is that the record may require additional information in most situations as a result of an Officer’s lack of understanding, not a failure to meet eligibility requirements.

Prior to the issuance of this new PM, cases in which there were no possibility of meeting requirements were already being issued denials without RFEs and NOIDs. RFEs and NOIDs were issued in situations where there was a possibility that a deficiency in evidence could be cured by the submission of additional evidence. When there was no possibility of curing the deficiency, denials were issued. By giving full discretion to officers to issue denials based on “lack of sufficient initial evidence,” Petitioners and Applicants are effectively stuck hoping that the presentation of the evidence will be clear enough to the adjudicating officer on the first try.

USCIS Director L.Francis Cissna stated in the USCIS announcement of the policy change that “Doing so will discourage frivolous filings and skeletal applications used to game the system, ensure our resources are not wasted, and ultimately improve our agency’s ability to efficiently and fairly adjudicate requests for immigration benefits in full accordance with our laws.”[8] However, it appears that this is just another action taken by the Service to enhance the USCIS’ discretion to deny petitions and slow down the immigration process for hundreds of thousands of Petitioners, Beneficiaries, and Applicants.

Until the policy goes into effect on September 11, 2018, we can only speculate on how the PM will be implemented in adjudications for specific case types.