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USCIS Clarifies Requests for Evidence, Notice to Deny Policies
 

By Roy Maurer  6/26/2013
 

U.S. Citizenship and Immigration Services (USCIS) issued a new policy memo to its staff on June 3, 2013, clarifying the use of Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs) when adjudicating immigration petitions, applications and other requests.

The memo is in response to an Office of Inspector General report that raised questions about the proper use of RFEs in adjudication and, specifically, the concern that a 2007 policy statement—“RFEs should, if possible, be avoided”—had been taken out of context by some USCIS adjudications officers.

The memo states: “An RFE is not to be avoided; it is to be used when the facts and the law warrant. At the same time, an RFE is not to be issued when the evidence already submitted establishes eligibility or ineligibility in all respects for the particular benefit or service. An unnecessary RFE can delay case completion and result in additional unnecessary costs to both the government and the individual.”

“USCIS is to be commended for all efforts to create uniformity and consistency with its adjudications, but the thought that there was any hesitancy in issuing RFEs before is hard to believe,” said Andrew Wilson, a partner at Serotte Reich Wilson LLP, based in Buffalo, N.Y., and a Society for Human Resource Management Global Special Expertise panel member. “I have not seen any hesitancy to issue RFEs,” Wilson told SHRM Online. “It almost seems like a major victory to process an L-1 without receiving an RFE as part of the adjudication process.”

Generally, an RFE is issued when an application or petition has missing or incomplete information or documentation or the adjudications officer needs more evidence to fully evaluate the case. The request will indicate what evidence is needed and the deadline for the response.

In some instances, USCIS may issue an outright denial without first issuing an RFE or a NOID.

“If the totality of the evidence submitted does not meet the applicable standard of proof, and the adjudicator determines that there is no possibility that additional information or explanation will cure the deficiency, then the adjudicator shall issue a denial,” the memo reads.

“I do fear that some adjudicators may start to use this memo to deny cases without issuing an RFE,” said Wilson. “One scary aspect is that it provides examples of cases that can be denied without any RFE. If adjudicators misunderstood the prior memo to mean they should not be sending RFEs, I would be concerned they will misunderstand when and how they can deny cases without an RFE.”

In some cases, such as when the response to an RFE provokes more questions, a follow-up RFE might be necessary, the memo stated. However, officers must include in a single RFE all the additional evidence they anticipate having to request.

In response to an RFE or a NOID, individuals must submit all of the requested materials together, along with the original RFE or NOID. Even if only a portion of the requested evidence is submitted, USCIS will treat the submission as a request for a decision on the record.

Roy Maurer is an online editor/manager for SHRM.

Follow him at @SHRMRoy

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