New Policy Memorandum on Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs)

By: Angelita Chavez-Halaka and Omar Nazarkhan

On July 13, 2018, United States Citizenship and Immigration Services (USCIS) published updated guidance regarding the issuance of Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs). This new change comes soon after the Department of Homeland Security’s mandate for USCIS to expand its ability to issue Notices to Appear (NTAs).

Beginning September 11, 2018, USCIS may exercise their expanded discretion to deny any application which fails to establish eligibility based on inadequate initial evidence. This change means that denials can be issued without an RFE or a NOID.

This new policy entirely reverses previous policy guidance set forth on June 3, 2013 wherein USCIS stated that RFEs should be issued unless it was determined that the applicant or petitioner had no legal ground to obtain an immigration benefit.

This Policy Memorandum aims to caution applicants and petitioners to carefully submit appropriate and required evidence and to dissuade applicants and petitioners from submitting incomplete filings.

What Types of Immigration Cases are Impacted?

This change includes, but is not limited to, the following types of cases:

• Waiver applications with little to no supporting evidence
• Family-based petitions where required forms and documents are not provided
• Employment-based categories where required forms and documents are not provided such as H-1Bs, L-1s, and other employment-based petitions

What can employers do?

• Collect and submit all required initial evidence
• Read forms and instructions carefully
• Consult with your Immigration Practitioner to clarify questions regarding the requested documentation and evidence

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