New Policy on RFE and NOID

USCIS has just published a new policy memorandum about Requests for Evidence and Notices of Intent to Deny. And it’s wonderful! It seeks to clarify the role of RFE and NOID in all adjudications, not only for EB-5 petitions and applications, but oh how we need this memo in EB-5. I’m quoting much of the memo below because it’s just so clear and rational and encouraging. Listen up, EB-5 team! This is how you adjudicate cases! We appreciate your expertise, but you weren’t hired just to wield theories and scattershot questions until applicants have validated every detail for you beyond a reasonable doubt. You are immigration service officers now. Your job is understand the legal eligibility requirements and review standard that apply to EB-5 cases, and to review evidence accordingly. (PS, Mr. Renaud, don’t you think it would be wise to include at least some people with legal education among your new EB-5 hires? We suffered in 2012 from multiple RFEs fueled by economists who were conscientious about details but seemed to have little sense of the process and standards for adjudication. We need the new EB-5 team in Washington DC to be staffed by people with the skills to understand and apply the general principles articulated in this memo.)

quoted from 6/3/2013 Policy Memorandum on Requests for Evidence and Notices of Intent to Deny
A. General Principles: RFEs 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.

RFEs. 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.

NOIDs. 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 a mandatory denial ground in 8 CFR 204.309(a);
• Form I-800 based on a 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 (e.g., a “skeletal filing”); or
• 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 (where there is also a discretionary component to the adjudication).

B. Additional Considerations
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.