The new USCIS guidance regarding RFEs and NOIDs and its negative impact on legal immigration

What is an RFE and NOID?

An RFE is a written notice issued by U.S. Citizenship and Immigration Services (USCIS) to request missing initial or additional evidence from applicants or petitioners who have filed for an immigrant benefit.

A NOID is a written notice issued by USCIS notifying the applicant or petitioner of the government’s intent to deny the immigrant benefit requested and providing the applicant or petitioner the opportunity to explain why a denial is not merited.

What does the new memo do?

On July 13, 2018, USCIS issued new guidance regarding adjudicator discretion to deny a request for an immigration benefit without first issuing a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID). The new policy makes it easier for USCIS to deny an application or petition without first issuing an RFE or NOID, by restoring "full discretion" to do so. For example, rather than giving the person the opportunity to fix what might be a simple filing error, adjudicators can deny a benefit if any of the required initial evidence is missing from the filing. Prior USCIS policy limited adjudicators' ability to deny a case without first giving the applicant or petitioner an opportunity to respond. A June 3, 2013 memo instructed adjudicators to issue an RFE if initial evidence was missing or if the evidence submitted fell short of the applicable standard of proof, unless the adjudicator determines there is "no possibility" that additional evidence might cure the deficiency. The July 13, 2018, policy supersedes the 2013 guidance and takes effect on September 11, 2018.

Who Is Impacted?

All applicants and petitioners who file immigration benefit applications with USCIS, including applications for naturalization, family-based immigrant petitions, temporary work visa petitions, immigrant petitions filed under the Violence Against Women Act (VAWA), and permanent residency ("green card") applications, on or after September 11, 2018, will be impacted by this new policy.

Why Is This Bad Policy?

The new policy imposes harsh consequences on individuals by making it easier for USCIS to deny an application without first providing an opportunity to correct an innocent mistake, submit a missing piece of evidence, or provide an explanation that would substantiate eligibility for the immigration benefit. Applicants and petitioners who do not have a lawyer to advise them will feel this most heavily. They could now face harsh consequences in the form of a denial of their immigration benefit application if they inadvertently make an innocent mistake on the application or misunderstand an evidentiary requirement.

 Petitioners and applicants will be forced to re-submit their benefits requests, which for all means having to repay steep immigration fees and for some means losing employment, travel opportunities, and/or their place in the heavily backlogged visa queue.

When you couple this new policy with a June 28, 2018 memo mandating USCIS to issue Notices to Appear (NTA) in far more immigration cases than ever before, even more individuals could be shuttled into immigration court removal proceedings. Read together, USCIS could deny an immigration benefit application without first issuing an RFE or NOID, and if the individual is no longer maintaining status at the time of denial, USCIS may issue an NTA to place the individual in removal proceedings.

These policies will have devastating effects on all types of immigration benefits applicants, including high-skilled workers, families, students, and survivors of domestic violence and other crimes. This is the latest effort to shift USCIS away from its service-oriented mission and turn it into another enforcement component of DHS, contrary to the will of Congress, and to the Homeland Security Act of 2002, which mandated USCIS focus on benefits adjudications and leave immigration enforcement to CBP and ICE.

Chilling Effect

This new policy memorandum is another brick in the administration's invisible wall that is slowing and restricting legal immigration to the United States by making it harder for immigrants to apply legally for immigration benefits. By making the legal immigration process more burdensome and uncertain, the new policy will harm U.S. citizens seeking to sponsor their relatives through the family-based system, individuals seeking asylum and humanitarian protection in the United States, permanent residents applying for naturalization, and U.S. companies seeking to hire and retain top talent from across the globe.

Note: This article is from “AILA Member Talking Points and Background Information on USCIS RFEs and NOIDs Guidance” published on aila.org on August 28, 2018