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ResourcesVisa & Immigration LawUS Immigration LawUSCIS Memo on New Policy Regarding Requests for Evidence (RFEs)

USCIS Memo on New Policy Regarding Requests for Evidence (RFEs)

Transcript of the above video:

As the title of this video suggests, we are discussing a recent Memorandum Issued by United States Citizenship and Immigration Service with respect to Notices of Intent to Deny so-called NOIDs as well as RFEs. What are we talking about here?

In the past, there was a certain policy with respect to Request for Evidence, and I am primarily going to make this about Request for Evidence as NOIDs are a little bit more narrow and the memorandum applies to both, but I want to make it clear in this video that I am coming at this more from an RFE standpoint; a Request for Evidence.  For those who are interested in more information, specifically drilling into the issue of RFE, go ahead and search this channel. We have got other videos on RFEs specifically for your reference.

But just as an overview, for example in cases involving immigration benefits to the United States, you are going to go ahead and see in certain cases, United States Citizenship and Immigration Service may go ahead and request further documentation in a given case. This was done sort of as a matter of course at one time and RFEs frankly, at least depending on the context, were not considered overwhelmingly problematic from a practitioner’s standpoint like for example myself. Yes, they may delay a case a little and certainly we want to go ahead and avoid those delays but that being said, in matters pertaining to immigration benefits, if I get an RFE I am not overly upset about it.  That being said, this policy change is going to have some rather substantial ramifications.

So a policy memorandum dated July 13, 2018, Subject: Issuance of Certain RFEs and NOIDs: Revisions to Adjudicator’s Field Manual (AFM) Chapter 10.5(a), Chapter 10.5(b)

I am only going to quote directly certain aspects of this memo. It is rather long. Those who are interested can just Google it.  It is a USCIS memo, it is public domain. But going into this memo:

 Previous guidance:

Quoting directly:

This policy memo, hereinafter we are going to call PM, they use that acronym in this memo so we will go ahead and use it from this point forward.

“This PM rescinds in its entirety the June 3, 2013 PM titled “Requests for Evidence and Notices of Intent to Deny” (2013 PM) regarding an adjudicator’s discretion to deny an application, petition, or request without issuing an RFE.”

Scope of this memorandum:

Quoting further:

“This memorandum applies to, and shall be used, to guide determinations by all U.S. Citizenship and Immigration Services (USCIS) employees.”

So presumably it is going to be in a substantial number of cases and not only that, it is going to apply relatively broadly. 

Quoting further:

“While the 2013 PM provided that RFEs should be issued “when the facts and the law warrant,” it also stated that an adjudicator should issue an RFE unless there was “no possibility” that the deficiency could be cured by submission of additional evidence. The effect of the “no possibility” policy was that only statutory denials (such as a denial where a nonexistent benefit is requested) would be issued without an RFE or an NOID.”

Quoting further:

“8 CFR 103.2(b)(8) provides that an adjudicator, under the circumstances described in the regulation, may either deny the application, petition, or request, or issue an RFE or  NOID when the record does not establish eligibility. The 2013 PM’s “no possibility” policy limited the application of an adjudicator’s discretion. The burden of proof, however, is on the applicant, petitioner, or requestor to establish eligibility. The policy implemented in this PM rescinds the 2013 PM’s “no possibility” policy and restores to the adjudicator full discretion to deny applications, petitions, and requests without first issuing an RFE or an NOID, when appropriate.”

What does this mean in plain English? Well what it means in plain English is adjudicators are going to be freed up from September 11th onward to refuse to issue an RFE and simply issue a Denial in certain types of cases where in the past, they may have as a policy matter been required to issue an RFE in order to go ahead and cure an underlying issue within the case. So let me go one step further and quote just one more line here.

Quoting further:

“It is not intended to penalize filers for innocent mistakes or misunderstandings of evidentiary requirements.”

Now to be clear, for a denial to occur there is an issue regarding eligibility so if you don’t establish eligibility within a given petition, then it is going to be possible to go ahead and deny that petition. In the past, under this “no possibility” doctrine, it basically was dictated that look even if they didn’t necessarily establish eligibility, you need to look at it and see is there in any way possible where they could establish eligibility if they cured the matter through a Request for Evidence or more specifically the response to a Request for Evidence.  So at the end of the day, this is an extremely important document because I have seen cases, specifically more often in the fiancee visa realm than in the marriage visa realm, where it can be argued that when an RFE was issued, at the time that RFE was issued eligibility had not been established. In those cases presumably, at least past September 11, 2018, you could see a denial in those kinds of cases which would require presumably a re-filing and the payment of another filing fee in order to move the case forward. This is extremely important because although, at length, I have discussed in this YouTube Channel, and throughout the practice that I have been in with respect to immigration, there are no guarantee in these cases but that being said, there was a much more higher level of certainty with respect to ultimate processing of a given case in the past under the old policy memorandum. Now what we are looking at is a situation where it is very possible that RFEs may effectively become, if not a thing of the past, perhaps quite a rarity, because as I have said, especially where I have dealt with K-1 fiancée visas, eligibility was not a foregone conclusion when the RFE was issued so under this rescission of the “no possibility” doctrine, I think it is likely we are going got see a higher rate of denial. What does this mean?  Well quite frankly I think it is probably going to be a good idea moving forward for many more folks to go ahead and seek legal representation and assistance, with respect to processing these cases. I know for a fact, we are already battening down the hatches  in our immigration division here going ahead  and tightening everything up to ensure that in the future,  we are not going to have this issue with RFEs. We were never particularly slack or lax in the past but if we got an RFE it was just something that could from time to time happen. More and more, certainly as September 11th closes in on us this year, as of the time of this filming it is about a month away from that date, of course we are going to be preparing more and more for the implementation of this policy but basically what I think should be taken away from this video is, if you are doing it yourself, you need to be extra, extra careful. Now they have gone out of their way in the policy memo to go ahead and stipulate they are not looking for little typos it really comes down to issues of eligibility.

But that being said, issues of eligibility are not as cut and dried as people think. For example, proving up the meeting requirement with respect to the K-1 fiancée visa, that in and of itself can be quite a hurdle to overcome, especially where this “no possibility“ doctrine has been swept away and we are not going to necessarily see an automatic RFE where the meeting requirement has not been fully proven up to the adjudicators standards.

So the think to take away from this video, after September 11, be very,  very aware that RFEs are pretty much going to be I would say a thing of a past, but for all practical purposes, probably not something you are going to see frequently and for that reason, it may be a good idea to contact legal professionals with respect to immigration matters and deal with  these matters in a very meticulous manner in order to ensure that you don’t see a denial at the USCIS phase of the process.