Tag Archives: RFE

Avoid the NOID by Supplementing the Record and Responding to RFE

USCIS will issue a Notice of Intent to Deny a petition (e.g. Form I-130 or Form I-140) when it has derogatory information or has evidence the beneficiary is ineligible for the benefit sought. A common example is when there is insufficient evidence of a bona fide marriage between the U.S. citizen (or permanent resident) petitioner and the foreign national beneficiary seeking marriage-based permanent residence.

A NOID is one last opportunity to rebut adverse findings that support a denial of the petition. To avoid a NOID, the petitioner should proactively supplement the record and/or file a full and timely response to USCIS’ Request for Evidence (RFE), if one is issued.

In a July 13, 2018 Policy Memorandum, titled Issuance of Certain RFEs and NOIDS; Revisions to Adjudicator’s Field Manual (AFM) Chapter 10.5(a), Chapter 10.5(b), USCIS officers are given full discretion to deny applications and petitions without first issuing an RFE or a NOID, when appropriate. This includes cases when (a) there is no legal basis to receive the benefit sought and (b) the required initial evidence is not submitted with the petition or application.

RFE and NOID: Similar, But Not the Same

Request for Evidence

An RFE is issued when the officer is uncertain whether or not the request should be approved and needs more evidence to make a decision.

The Policy Memorandum states that in an RFE, USCIS should (a) identify the eligibility requirement that has not been established and why the evidence submitted was insufficient, (b) identify any missing evidence required by statute, regulation or form instruction, (c) identify examples of other evidence that may be submitted to establish eligibility; and (d) request that evidence.

The normal timeframe to submit a response to an RFE is 87 days. A follow-up RFE (or a NOID) might be in order if the response opens up a new line of inquiry or raises eligibility issues that were not considered during initial case review. USCIS may also deny the application or petition if all the requested evidence is not submitted, especially when this prevents a material line of inquiry.

Notice of Intent to Deny

A NOID is given when the officer is leaning toward a denial, but the applicant, petitioner or requestor is unaware of the negative information or its impact on eligibility for the benefit sought.

The Policy Memorandum states, “When a preliminary decision has been made to deny an application or petition and the denial is not based on lack of initial evidence or a statutory denial…the adjudicator must issue a written NOID to the applicant, petitioner, or requestor providing up to a maximum of 30 days to respond to the NOID.”

A NOID is much more serious than an RFE. Unlike an RFE that lists exactly what evidence is missing, a NOID describes derogatory information to support a denial. You have to figure out what evidence and explanations to submit to rebut all the allegations in the NOID and prevent a denial. You also have a shorter time frame (e.g. 30 days instead of 87 days) to address complicated issues.

Supplement the Record and/or File a Full and Timely RFE Response to Avoid the NOID

While the case is pending — and before a Request for Evidence or Notice of Intent to Deny is issued — it is sometimes appropriate to supplement the record with additional evidence.

In a recently approved I-130 petition and I-485 (green card) application case, I counseled my clients to submit written affidavits addressing discrepancies between their oral testimonies at the green card interview with USCIS. Among the discrepancies were very different accounts of the marriage proposal, including where, when and how it occured. In their follow-up affidavits, they provided credible explanations for the differences in their answers.

Furthermore, at the time of the interview, they were living in separate apartments due to financial reasons, cultural factors, and logistical considerations. I advised them to submit rental applications showing they were actively seeking to live together. The supplemental evidence was sent to USCIS a month after the interview.

Four months later, the couple finally moved in together after securing their own apartment. We submitted their joint lease agreement and newly filed joint tax return demonstrating the bona fide nature of their marriage.

Seven months after receiving this supplemental evidence, USCIS issued a Request for Evidence asking for more evidence of a shared life together. The RFE listed examples such as lease(s) showing the same residence, documents showing shared finances and obligations, pictures of their wedding, and sworn affidavits from others with personal knowledge of the validity of the marriage.

Within the 87-day timeframe, we provided a full response including the couple’s new joint lease agreement, shared car insurance and health insurance policies, life insurance record listing one party as the other’s primary beneficiary, letters from neighbors confirming they live together, family photographs, and affidavits from relatives describing their good-faith marriage.

A month after receiving the Response to RFE, the Service approved the I-130 petition. After the updated Form I-693 (Report of Medical Examination and Vaccination Record) was provided, upon request, USCIS soon approved the concurrently filed I-485 application for permanent residence.

The couple had celebrated their second wedding anniversary by the time the I-485 application was adjudicated. A 10-year green card (instead of 2-year conditional card) was issued and there will be no need to file a Form I-751 petition to remove conditions on residence.

Despite the discrepancies at the interview and their living in separate residence for several months, my clients got their case approved by proactively supplementing the record and submitting a full and timely response to the RFE. These actions were key to avoiding a Notice of Intent to Deny, which is just one step short of a denial.

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Updated Policy Makes It Easier for USCIS to Deny Petitions and Applications Without First Issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID)

As of September 11, 2018, an updated policy will make it easier for USCIS to deny a petition, application or request without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) if initial evidence is not submitted or if the evidence in the record does not establish eligibility for the benefit sought. The new guidance applies to all petitions, applications and requests (except for Deferred Action for Childhood Arrivals/DACA cases) received by USCIS after the effective date.

The policy memorandum (PM), dated July 13, 2018, rescinds the prior June 3, 2013 guidance implementing the “no possibility” policy and restores to the USCIS officer full discretion to deny petitions, applications and requests without first issuing an RFE or a NOID, when appropriate.  According to USCIS, this policy aims to discourage frivolous or substantially incomplete filings used as “placeholder” filings and encourage petitioners, applicants and requestors to collect and submit required evidence in the initial filing.

The prior 2013 PM provided that RFEs should be issued unless there was “no possibility” that additional evidence might cure the deficiency and lead to an approval. Thus, in practice, it limited denials without RFEs or NOIDs to requests where an adverse decision was mandatory under law (e.g. statutory denials such as when an applicant requests a benefit that no longer exists).

The updated policy provides guidance as follows:

Statutory Denials

USCIS will continue issuing statutory denials, when appropriate, without first issuing an RFE or NOID. This includes filings when the applicant, petitioner, or requestor has no legal basis for the benefit sought, or submits a request for a benefit under a program that has been terminated.

If all required initial evidence is not submitted with the application or petition, USCIS may exercise its discretion to deny the benefit request for failure to establish eligibility. Examples include:

  • Waiver applications that require a showing of extreme hardship to a qualifying relative (U.S. citizen or permanent resident spouse or parent), but there is no evidence of a qualifying relative and the applicant is claiming extreme hardship to another relative (e.g. U.S. citizen child).
  • Family-based immigrant petitions filed for relatives that do not fall under any of the family-based categories.

Denials Based on Lack of Sufficient Initial Evidence

USCIS, in its discretion, may deny the application or petition when the required initial evidence is not submitted with the original filing and the applicant or petitioner fails to establish eligibility for the benefit sought. Examples include:

  • Waiver applications submitted with little or no supporting evidence.
  • Cases when 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 such submission. For example, a Form I-864, Affidavit of Support, if required, was not submitted with a Form I-485, Application to Register Permanent Residence or Adjust Status.

This PM updates Chapters 10.5(a) and 10.5(b) of the USCIS Adjudicator’s Field Manual and contains an “Additional Considerations” section, which is not new, and is nearly identical to the policy in the superseded 2013 PM. For instance, USCIS must still offer the applicant or petitioner an opportunity for rebuttal before making a decision if it has derogatory information and the applicant or petitioner is unaware that the information is being considered.

Conclusion

By restoring full discretion to USCIS officers to deny petitions or applications, when appropriate, without issuing a Request for Evidence or Notice of Intent to Deny first, the new guidance reflects USCIS’ expanded enforcement priorities, which are also revealed in its updated policy on unlawful presence and Notices to Appear in removal proceedings.

For more information, read our related articles:

USCIS Policy Change Makes Nonimmigrant Students and Exchange Visitors More Likely to Accrue Unlawful Presence Toward 3/10-Year Bar and Permanent Bar

Updated Notice to Appear (NTA) Guidance Requires USCIS to Initiate Removal Proceedings In More Cases

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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