Since 2013, USCIS adjudicators have been instructed to issue a Request For Evidence (RFE) or Notice Of Intent to Deny (NOID) if the evidence submitted for a case was lacking or fell short of the applicable standard of proof. If a case receives a RFE or NOID, the petitioner is then able to submit additional evidence as requested by the adjudicator.
However, in July of this year, the USCIS announced new guidance regarding the issuing of RFEs and NOIDs. The new guidance rescinds the previous policy and grants adjudicators more discretion in denying a case outright without first issuing a RFE or NOID. This is problematic because if a case is denied and the petitioner is not given the opportunity to provide additional evidence related to their case, they may have to take extra time to resubmit their case entirely, including paying the filing fee for a second time.
This new policy goes into effect on September 11, 2018, and the USCIS has stated that all cases filed on September 12, 2018 or later will be subject to the new guidelines. However, if a case was filed prior to this date, it will still be adjudicated under the previous standards related to issuing a RFE or NOID.
However, in a teleconference last week, the Ombudsman’s Office of the USCIS stated that the goal of this new policy is not to punish innocent mistakes or misunderstandings, such as forgetting to submit a document, but rather to reduce frivolous filings, placeholder filings, and incomplete filings. The USCIS has stated that it intends to publish checklists of required initial evidence for various affected petition types on their website on September 11. Ostensibly, if all of the required initial evidence is submitted at the time of filing, the adjudicator should not issue an outright denial without first issuing a RFE or NOID. Given the above, we don't have too much fear about the new policy given the expected explicit details of what is "required" to make a prima facia showing here. In short, we don't believe this new policy will alter much in terms of practice for the vast majority of clients.