Mark A Ivener, A Law Corporation

USCIS Issues Final Rule Removing Standardized Request for Evidence Timeframe


U.S. Citizenship and Immigration Services (USCIS) issued a final rule, effective June 18, 2007, to provide flexibility to the agency in setting the time allowed to applicants and petitioners to respond to a Request for Evidence (RFE) or to a Notice of Intent to Deny (NOID). Specifically, the final rule maintains the current 12-week standard as a ceiling on the response time to be provided, and sets a maximum of 30 days to respond to a NOID.

The rule also describes the circumstances under which the agency will issue an RFE or NOID before denying an application or petition, but USCIS said it will continue generally to provide petitioners and applicants with the opportunity to review and rebut derogatory information.
The rule also clarifies when petitioners and applicants may submit copies of documents in lieu of originals.

USCIS said it intends to issue policy guidance setting clear standards for when a timeframe less than these maximums will be afforded before the effective date of the rule.

USCIS noted that it recognizes the value of a predictable timeframe for responding to an RFE or NOID, and stated that it did not intend to make this an unpredictable, discretionary process with timeframes determined by individual adjudication officers. USCIS said it will set clear timeframes and standards for submission of different kinds of evidence in different circumstances. The timeframes will be set out in internal guidance to adjudicators. USCIS said it foresees no reason why this guidance also would not be publicly disclosed after it is developed or whenever it is adjusted.

USCIS noted that important processing steps (such as background checks) may need to be repeated if processing extends beyond certain timeframes. Repeating steps may significantly delay the eventual acquisition of an immigration benefit. Longer timeframes can work against a timely response also because applicants and petitioners given almost three months to respond may delay responding simply because they consider that additional time in the U.S. to be a benefit, USCIS pointed out. Recognizing that the majority of applications and petitions are eventually approved, USCIS said it does not want to restrict arbitrarily a reasonable opportunity to submit material to prove eligibility. USCIS added that it recognizes that documents from certain countries other than the U.S. are “occasionally difficult to obtain”; thus, the timeframe flexibility will take into account these situations. Nevertheless, USCIS asserted, most applicants and petitioners can provide required documents in fewer than 12 weeks.

The final rule is available here.

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Mark A. Ivener, A Law Corporation, a nationally recognized law firm, has successfully assisted hundreds of clients in immigration matters.

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