September 06, 2018

Clarifying the Effect of USCIS’s “RFE/NOID Memo”

On September 11, 2018, U.S. Citizenship and Immigration Services (USCIS) will begin implementing Policy Memorandum (PM) 602-0163, (“The RFE/NOID Memo”). The RFE/NOID Memo directs USCIS adjudicators to deny an application, petition, or request without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) when required initial evidence was not submitted or the evidence of record fails to establish eligibility. The RFE/NOID Memo applies to all applications, petitions, and requests, except for Deferred Action for Childhood Arrivals (DACA) adjudications, received after that date.

This policy memo supersedes previous guidance in which the agency was instructed to issue a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) unless there was “no possibility” that a deficiency in the filing could be overcome by further evidence or information. As an example, the Policy Memo states that if an Adjustment of Status (“green card”) application is submitted without a required I-864 Affidavit of Support, the entire application will be denied.

This policy is not intended to allow USCIS adjudicators to deny a petition when there is a substantive question of eligibility. For instance, if it is unclear to the adjudicator whether an H-1B petitioner’s proposed job meets the guidelines for a “specialty occupation” the adjudicator should still issue a Request for Evidence. The petitioner will then have the opportunity to provide additional evidence of eligibility for the benefit sought. On the other hand, if a petitioner files an R-1 petition for a Religious Worker and does not include evidence of the beneficiary’s membership in a religious denomination having a bona fide non-profit religious organization in the United States for at least two years immediately preceding the filing of the petition, then the petition could be denied, since such documentation is required initial evidence.

USCIS has stated that the policy is “intended to discourage frivolous or substantially incomplete filings used as placeholder filings” and “is not intended to penalize filers for innocent mistakes or misunderstandings of evidentiary requirements.” Please keep in mind that this memo does not change the evidentiary standards for an immigration benefit. The RFE/NOID Memo does not supersede the “preponderance of the evidence” standard under the Adjudicator’s Field Manual Chapter 11.1(c). The Preponderance of the Evidence standard is met “if there is a greater than 50% probability of the matter occurring” or if “it is more likely than not that the matter has occurred.” Thus, even if the USCIS adjudicator has some doubt, if the petitioner submits “relevant, probative, and credible evidence” meeting this standard of proof, the petition should be approved.

The Law Offices of Brelje and Associates will continue to prepare thorough, complete submissions to USCIS and to ensure that the documentation and evidence submitted in initial filings minimizes the possibility of a denial on first review. Please contact our office or your case manager if you have any questions on this topic.

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