USCIS Requests for More Evidence Raise Concern

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There has been a recent increase in the number of Requests for Evidence (RFE) issued by the USCIS particularly in I-751 petitions and employment-based I-485 applications.

Evidence which was previously sufficient to meet the applicable standard of proof for I-751 petitions to remove conditions seems no longer adequate. The USCIS has become more stringent and is requiring more documents to prove good faith marriage and continued marital union.

In employment-based I-485 adjustment of status applications, boilerplate RFEs have been issued requiring documentation of continuous employment authorization from the date the Form I-485 was filed to the date of the RFE and verification of job offer from the original or new employer.

As a general rule, an RFE is issued where there are missing or incomplete information or documentation or the adjudications officer needs more evidence to fully evaluate the application or petition. The request will indicate what evidence is needed and the deadline for the response.

The USCIS has the discretion to issue an RFE or Notice of Intent to Deny (NOID) in appropriate circumstances. There are some instances however where the USCIS may issue an outright denial without first issuing an RFE or a NOID.

Last June 3, the USCIS issued a policy memorandum to its personnel clarifying the role of RFEs and NOIDs in the adjudication process. It emphasized that RFEs should not be avoided but should issue where the facts and law warrant it. The memorandum lists general principles that an adjudication officer should follow to determine whether an RFE should issue.

The memo states that where the essential elements for eligibility are met using the applicable standard of proof, the adjudications officer shall approve the application or petition without issuing an RFE. The adjudications officer, on the other hand, should issue an RFE if the initial evidence submitted is incomplete or additional evidence is required to meet the applicable standard of proof. If it is determined however that no additional evidence can cure the deficiency, the officer shall issue a denial.

The issuance of a NOID in some instances is required before denying the immigration benefit requested. Where the request for an immigration benefit is made on Form I-800A (relating to adoptions), Form I-800, and Form I-485 (failure of a physician to comply with the conditions of his National Interest Waiver), the issuance of a NOID is required.

The USCIS also deems the issuance of a NOID appropriate where there is little or no evidence submitted or where the individual does not warrant the favorable exercise of discretion even if he has met the threshold eligibility requirements. Also, where a derogatory information is uncovered and is not known to the individual, the officer is required to issue a NOID.

Generally, USCIS will adjudicate the application or petition based on the new evidence submitted. However, it may issue follow-up or additional RFEs where the response opens up a new line of inquiry. A NOID in some cases is issued after the USCIS receives the response to the RFE.

In the meantime, USCIS will put the petition or application on hold. If no response is received on the set deadline, it will decide on the basis of its records and the decision will generally be unfavorable. It is therefore important to timely file the response with the requested evidence to successfully overcome the RFE.

(Editor’s Note: REUBEN S. SEGURITAN has been practicing law for over 30 years. For more information, you may log on to his website at or call (212) 695-5281.)