The US Citizenship and Immigration Services (USCIS) recently issued a policy memorandum that may prove useful went gathering evidence that you can avoid RFEs and NOIDs. The policy memorandum entitled “Requests for Evidence and Notices of Intent to Deny,” issued on June 3, 2013, details USCIS policy regarding when to issue an RFE or a NOID. A careful review of this policy memorandum should be particularly helpful for a favorable adjudication.
The policy memorandum cited an earlier report issued by the Office of Inspector General (OIG) that referenced a June 1, 2007 USCIS memorandum stating that “RFEs should, if possible, be avoided.” This sentence has been misinterpreted by adjudicating officers in certain situations, according to the recent memorandum, and the purpose of the memorandum was to clarify USCIS policy of when to issue RFEs and NOIDs.
The policy memorandum stressed that USCIS officers should not avoid sending an RFE, but rather they should use the RFE when justified by the facts and the law, unless special circumstances apply that are accompanied by special instructions. The memorandum explains as follows.
The policy memorandum indicates that an approval should be issued when all of the essential elements have been met by the appropriate standard of proof, and if any additional requirement of favorable exercise of discretion has been met by the individual as warranted.
Request for Evidence (RFE)
You will likely receive a Request for Evidence if your petition or application is submitted without enough evidence necessary to establish to the adjudicating USCIS officer that an approval is warranted. An RFE means your case will probably be denied unless you respond with all of the evidence requested by the RFE.
The memorandum explains as follows. An Request for Evidence should be issued when all of the required initial evidence has not been provided or the evidence taken as a whole was not reached the level of the required standard of proof. Usually, the appropriate standard of proof is the “preponderance of the evidence” standard, which means that you must establish that it is more likely that you are eligible for approval than not eligible.
RFEs issued by adjudicating officers should request all of the additional evidence necessary for approval to avoid the need for multiple RFEs, according to the memorandum. When an RFE response creates new line of inquiry, it then may become Appropriate to issue a follow-up RFE.
Adjudicating officers also have the discretion to obtain additional evidence to corroborate or validate the evidence submitted. Such additional evidence may be from sources that are publicly available, nonpublic governmental sources, and classified sources. All additional evidence must be added to the Record of Proceeding unless that evidence is classified.
Notice of Intent to Deny (NOID)
Receiving a Notice of Intent to Deny is much more serious than getting an RFE. The Notice of Intent to Deny is actually similar in substance to the RFE in that it is a request for additional evidence. However, whereas an RFE is simply a notice that the USCIS officer needs more evidence from you in order to approve your case, the NOID is different in that it communicates a warning to the applicant or petitioner that there are serious deficiencies and the USCIS intends to deny the case.
The memorandum explains as follows. A NOID must be issued before a denial when evidence is uncovered that is derogatory to adjudication and they information is unknown to the individual. The NOID is also to be used when the petition or application is accompanied by little or no evidence, such as in the case of a skeletal filing, or (in cases involving a discretionary adjudication component) when the eligibility threshold has been met but individual has not established that a favorable exercise of discretion is warranted.
A careful review of this policy memorandum may provide a helpful understanding of what the adjudicating officer is looking for so you can be sure that your petition or application is submitted with at least enough evidence required in order to meet the appropriate standard of proof, thus avoiding an RFE or a NOID.