Under 8 C.F.R. 103.2(b)(8) USCIS has the discretion to issue Request for Evidence (RFEs) and Notice of Intent to Deny (NOIDs) in appropriate circumstances. USCIS also has the discretion in some instances to issue a denial without first issuing an RFE or NOID. This policy manual offers guidance to the exercise of that discretion and not only applies to application and petitions, but also to requests for consideration of deferred action and to other adjudications not classified as benefit requests. 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.
General Principles: RFE and NOIDS
The guidance articulated under this heading is generally applicable. However, there may be special circumstances where the general principles do not apply. In such instances, there will be accompanying special instructions that will provide alternate guidance. In the absence of special instructions, officers must follow these general principles.
In each case, officers must:
- Understand the specific elements required to demonstrate eligibility for the particular application, petition or request.
- Understand the standard of proof that applies to the particular application, petition or request. In most instances, the individual has the standard of proving eligibility by a preponderance of the evidence. Under that standard, the individual must prove it is more likely than not that each of the required elements has been met.
- Review all the evidence to determine whether each of the essential elements has been satisfied by the applicable standard of proof. Fraud and national security concerns should be vetted pursuant to FDNS and CARRP protocols.
If all the essential elements have been satisfied by the applicable standard of proof, including any additional requirement to establish that the individual warrants a favorable exercise of discretion, the officer shall approve the application, petition or request without issuance of an RFE. 8 CFR 103.2(b)(8)(i).
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.
If not all of the required initial evidence has been submitted or the officer determines that the totality of the evidence submitted does not meet the applicable standard of proof, the officer should issue an RFE unless he or she determines there is no possibility that additional evidence available to the individual might cure the deficiency.
The issuance of a NOID is required as described under AFM Chapter 10.5(a)(3). A NOID is required before denying any immigration benefit requests submitted on the following forms:
- Form I-800A (relating to adoptions) based on mandatory denial ground in 8 CFR 204.309(a)
- Form I-800 based on mandatory denial ground in 8 CFR 204.309(b) or
- Form I-485 filed by a physician under 8 CFR 245.18(i) because the physician failed to comply with the conditions attached to his or her National Interest Waiver
A NOID is also required when derogatory information is uncovered during the course of the adjudication that is not known to the individual, according to 8 CFR 103.2(b)(16).
The issuance of a NOID is also appropriate in the following circumstances:
- There is little or no evidence submitted
- The individual has met the threshold eligibility requirements for the requested benefit or action, but has not established that he or she warrants a favorable exercise of discretion
In some cases, particularly where the response to an RFE opens up new lines of inquiry, a follow-up RFE might prove necessary. However, officers must include in a single RFE all the additional evidence they anticipate having to request. The officer’s careful consideration of all the apparent gaps in the evidence will minimize the need for multiple RFEs.
In response to an RFE or NOID, individuals must submit all of the requested materials together at one time, along with the original RFE or NOID. If only some of the requested evidence if submitted, USCIS will treat such submission as a request for a decision on the record. 8 CFR 103.2(b)(11).
Apart from RFEs, officers have the discretion to validate assertions or corroborate evidence and information by consulting USCIS or other governmental files, systems and databases or by obtaining publicly available information that is readily accessible. 8 USC 1357(b), 8 CFR 103.2(b)(16)(i). For example, an officer may, in the exercise of discretion, verify information relating to a petitioner’s corporate structure by consulting a publicly available state business website. As another example, an officer may, in the exercise of discretion, corroborate evidence relating to an individual’s history of nonimmigrant stays in the United States by searching a non-public, U.S. government database. Any such additional evidence must be placed in the Record of Proceeding, unless specifically exempted from inclusion, as is the case for classified materials. Further, certain types of evidence, including commercial data reports and “For Official Use Only” (FOUO) materials, must be filed and maintained separately from the Record of Proceeding.
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