New USCIS Change Could Mean More Visa Approvals

Policy Alert: Updated Guidance for Requests for Evidence and Notices of Intent to Deny Could Mean More Immigration Benefit Approval and Less Risk

On June 9, 2021, U.S. Citizenship and Immigration Services USCIS published policy guidance in the USCIS Policy Manual that provides adjudicating officers a framework for issuing Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs). 

Background

In July 2013, USCIS published PM-602-0085 instructing officers to send RFEs or NOIDs in cases involving insufficient evidence before issuing a denial, unless “there was no possibility that the benefit requestor could overcome a finding of ineligibility by submitting additional evidence.¹” 

Then, in September 2018, USCIS rescinded this “no possibility” policy and gave officers the ability to deny immigration benefit requests “for lack of initial evidence without first sending a Request for Evidence (RFE) or NOID.² ” 

The 2018 policy meant that immigration officials who had questions about a case or saw a technical issue could deny immigration benefits instead of allowing the requestor to correct clerical errors or address concerns.

Adjudicators had nearly complete discretion to make complex judgments without clear standards nor proper oversight to safeguard against unequal treatment. As a result of the draconian immigration policy, there was a drastic increase in flat-out denials (including extensions) in cases that would ultimately receive approval if given a chance to rectify concerns or submit additional evidence.

USCIS stated in Policy Alert 2021-11 that it is “returning to the principles of the 2013 policy by issuing RFEs and NOIDs when additional evidence could demonstrate eligibility for an immigration benefit.” 

The policy reduces barriers to immigration benefits and allows benefit requestors to correct innocent mistakes, ensuring the agency is fairly and efficiently adjudicating benefit requests. The policy also aims to protect both benefit requestors and USCIS from unnecessarily expending additional resources.

¹ See Requests for Evidence and Notices of Intent to Deny, PM-602-0085, issued June 3, 2013.
² See Issuance of Certain RFEs and NOIDs; Revisions to Adjudicator’s Field Manual (AFM) Chapter 10.5(a), Chapter 10.5(b), PM-602-0163, issued July 13, 2018. 

PA-2021-11: Requests for Evidence and Notices of Intent to Deny states:

“This guidance, contained in Volume 1 of the Policy Manual, replaces the guidance found in Chapters 10.3(f), 10.5, 10.11(b), and 11.5 of the Adjudicator’s Field Manual and is effective immediately. The guidance contained in the Policy Manual is controlling and supersedes any related prior guidance on the topic.³ 

Policy Highlights

• Explains that an officer should generally issue an RFE or NOID if the officer determines there is a possibility the benefit requestor can overcome a finding of ineligibility for the benefit sought by submitting additional evidence. 
• Emphasizes that officers should not issue unnecessary RFEs and NOIDs, such as in cases where the officer determines the evidence already submitted establishes eligibility or ineligibility for the benefit sought. 
• Provides guidance on when and how officers should issue RFEs and NOIDs and the limited circumstances in which officers may deny a case without first issuing an RFE or NOID. 
• Explains timeframes and options for benefit requestors to respond to RFEs and NOIDs.

Citation 

Volume 1: General Policies and Procedures, Part E, Adjudications, Chapter 6, Evidence [1 USCISPM E.6] and Chapter 9, Rendering a Decision [1 USCIS-PM E.9].

³ This includes the July 13, 2018 policy memorandum. Refugee and asylum applications are governed by different regulations and procedures regarding RFEs, NOIDs, denials, and failures to appear; therefore, this guidance does not apply to these applications.