Recent reports indicate a significant increase in USCIS Notices of Intent to Deny (NOID) without the prior issuance of a Request for Evidence (RFE). This trend signals a potential shift in USCIS adjudication practices, raising the stakes for foreign nationals and their employers and family members.

Understanding the Policy Shift

The USCIS Policy Manual grants officers the discretion to issue RFEs and NOIDs. Notably, it also states that if an officer determines a benefit request lacks a legal basis for approval, a denial can be issued without first sending an RFE or a NOID.

While it remains to be seen how aggressively USCIS will apply this discretion, recent changes to the policy manual suggest a greater propensity for denials. A section that previously encouraged officers to “generally first issue an RFE or NOID to request evidence of eligibility” for family-based petitions has been removed. This change, coupled with USCIS’s continued practice of citing the discretion to deny without an RFE or NOID, suggests that applicants may face more immediate adverse decisions.

Receiving a NOID instead of an RFE can have a significant and immediate adverse impact on a foreign national’s ability to stay in the United States, making the response critically important.

Preparing for the Unexpected: Suggested Actions

In light of these developments, it is crucial for applicants and petitioners to adjust their strategies. Here are some proactive steps to take:

• Expect the Unexpected: Be prepared to pivot from historical USCIS norms and build your case strategies on a strong foundation of statutory and regulatory provisions, not just past practices. The USCIS Policy Manual is subject to change without warning, making reliance on it a greater risk.

• Eliminate Foreseeable Issues: Take extra care to ensure all parts of the application are compliant. For example, USCIS has been issuing NOIDs based on invalid signatures, specifically flagging signatures that appear to be copied and pasted. Consider withdrawing and re-filing any pending petitions that may have this signature risk.

• Focus on Quality Control: Implement or reinforce rigorous filing checklists to ensure that all forms (latest versions), fees (accurate amounts), and supporting documentation are included in the initial submission.

• Track Trends: Stay informed and monitor trends to better prepare and adapt.

• File Early: Submit applications with the maximum lead time provides more options, such as re-filing, appealing, or executing a back-up plan in the event of a denial.

• Anticipate NTAs: Be aware of the reported uptick in Notices to Appear (NTAs), which are being issued more frequently, including to individuals within their 60-day grace period. This awareness is vital for timely client advice and risk assessments.

How We Can Help

Navigating these new challenges requires an experienced legal partner. At Cohen, Tucker + Ades, we are closely monitoring these evolving trends and are prepared to assist you. Our firm is committed to a proactive approach, ensuring your applications are meticulously prepared to withstand heightened USCIS scrutiny. We can help you develop a robust legal strategy, conduct thorough quality control checks on your filings, and provide timely, informed advice to mitigate risks. By partnering with us, you can be confident that your case is built on a solid foundation of law and best practices, giving you the best chance of a positive outcome in this changing environment.

Sources:

USCIS Policy Manual, Volume 1 General Policies and Procedures, Part E – Adjudications, Chapter 6 – Evidence, Subpart F, citing to 8 CFR 103.2(b)(1) | USCIS

USCIS Policy Manual, Volume 6 Immigrants, Part B – Family-Based Immigrants, Chapter 5 – Adjudication of Family-Based Petitions, Subpart C | USCIS

AC DOL Open Forum – #8 | AILA 

Practice Pointer: Preparing for Denials and NOIDs without RFE | AILA