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USCIS Regulation
on Response Time for RFEs and NOIDs
Posted
May 04, 2007
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The USCIS has issued a
Final Rule, effective June 16, 2007, that gives adjudicators flexibility in
determining
the length of time a petitioner or applicant has to respond to a Request for
Evidence (RFE) or a Notice of Intent to Deny (NOID). Currently, the standard
deadline for response to an RFE is twelve weeks. NOIDs must be responded
to within thirty days. Under the new regulation, the USCIS will determine
how much time should be permitted in any given case, with maximum possible
time being what is now the standard response deadline. That is, adjudicators
will set deadlines for both RFEs
and NOIDs that could be up to
twelve weeks in case of RFEs or up to thirty days for NOIDs. No extensions
of time are permitted.
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Proposed Regulation of Nov 2004 is Finalized
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The rule is supposed to increase USCIS efficiency by decreasing the
time it takes to adjudicate a case. Long-time readers may recall this proposal
that was entered on
November 30, 2004. It has not drawn attention in several years, however. [This
topic was reported to MurthyDotCom and MurthyBulletin readers
in our December 3, 2004 article,
Regulatory Activity on
November 30, 2004.] It is somewhat ironic that the USCIS is
shortening response times for RFEs and NOIDs when documents must often be
obtained from other countries and bureaucratic government agencies abroad,
though the USCIS itself took more than two years to complete its review process
of this regulation.
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Flexible RFE Response Times
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Under the current rules, the USCIS must permit twelve weeks for a response
to an RFE. As of June 16, 2007 the new regulation allows the USCIS to vary
the amount of time that is permitted to respond to each RFE. The basic idea
is that evidence that is easy to obtain, such as photographs, will be given
less time for a response. Documentation more difficult to obtain, such as
foreign documents, may receive the full twelve weeks.
©MurthyDotCom
The regulation lists factors to be considered, including:
-
the type of evidence needed
-
the source and availability of documentation
-
the effect a denial would have on the applicant /
petitioner / beneficiary (such as the loss of on old priority date, the
loss of status or interim benefits)
-
the method of delivery of the RFE or NOID
-
other case-specific factors
No
Extensions of Response Time Permitted
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The regulation does not permit any extensions of time to respond to the RFE
or NOID. This is not a change in the rules. Extensions of time for RFEs or
NOID responses are not permitted currently. This has been problematic for NOIDs,
as 30 days often prove to be insufficient; especially when the
USCIS may take several weeks to mail the RFE or the NOID. The 30 days
are counted from the date of the issuance of the NOID, when the date of
receipt varies from a couple of days from that date to sometimes more than a
couple of weeks later. In many cases, there have been complaints that the
RFE or the NOID was never mailed out or received by the employer or the
attorney at all.
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Denial Possible Without RFE / NOID
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If the initial evidence submitted does not reflect that the case is eligible
for approval, the USCIS may deny the case, without first issuing an RFE or a
NOID. It is all the more important, therefore, to submit complete cases,
with evidence that is sufficient for an approval.
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USCIS Denial Likely if No Response Submitted
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If the USCIS does not receive a response by the RFE or NOID deadline, they
have three options to deny a case. Under the regulation, they can deny by
finding that the case has been abandoned. They can deny it
based upon the evidence that they have received (which is presumably
insufficient for an approval). They also can deny the case based on both
of these reasons.
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Concerns with USCIS Regulation
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There are a number reasons to be seriously concerned about this regulation.
People want their cases to move forward. Rarely does anyone have a
motivation to delay responding to a case.
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Documents Often Not Easy to Obtain
: If documents are easy to obtain,
they typically will be submitted quickly. If the documentation is more
complex or difficult to obtain for any number of reasons, then, for an RFE, the
full 12-week timeframe is often needed. The ease or difficulty of obtaining
documentation is not always obvious. Anyone who has had to prepare RFE
responses knows that it can be challenging to coordinate the necessary
documentation. It is not uncommon to have to acquire documents from multiple
individuals - the employer, the foreign national, and/or from a number of
family members. Some of these sources may be traveling abroad. Adjudicators have not necessarily had
the real-world experience required to realistically determine the amount of
time needed.
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Time Lost in Mailing :
Of particular concern is the amount of time that is lost in mailing by the
USCIS, as alluded to above. The USCIS or its mailroom contractor does not
send notices or other USCIS communications promptly. Postmarks are often
several days AFTER the date on the enclosed NOID, RFE, or decision. It is
quite typical to receive a NOID a week or more after the date on the NOID.
Sometimes it is much longer. The deadline runs from the date on the actual
NOID, however, not from the postmark or receipt date. If this all coincides
with a holiday or vacation for any of the parties involved (lawyer,
employer, or beneficiary), the time for response preparation can be
significantly diminished.
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More Appeals Likely
:
Changing RFEs so that they too can have a reduced deadline of as little as
30 days takes the problem and increases it greatly. NOIDs are far less
common than RFEs. While the goal is efficiency, giving adjudicators
discretion in this area just creates another place for errors to occur. When
there is an error, there are potential grounds to appeal. When people are
not given the ability to present their evidence, there are potential grounds
to appeal and appeals clog the system further. This does not improve efficiency.
Another matter of concern is that, generally speaking, an applicant /
petitioner is not permitted to provide new evidence at the time of appeal.
Thus, if insufficient time is given to respond to a NOID / RFE, and it is
not possible to assemble and present all evidence by the short deadline, it
may not be possible to provide that evidence at all, even on appeal.
©MurthyDotCom
Issues of Fairness at Stake
:
Given the length of time cases take to move through the immigration process,
and what is at stake, it is not unreasonable to give applicants /
petitioners the 12 weeks for RFE responses. What is saved by rushing the
cases toward potential denial will be lost in time spent for appeals. Of
course, there is also the general fairness issue that is lost in the
shuffle. It should be noted that it is not unusual for one to seek a second
legal opinion at the RFE stage, to determine whether one's lawyer did
something "wrong" and/or to possibly hire a new lawyer. While an RFE does
not necessarily mean that anything was done wrong, shortening the deadline
reduces the opportunity to obtain second opinions and, potentially, locate a
new attorney, if needed.
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Murthy Participation in Teleconference on RFE / NOID Regulation
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Because of our concerns surrounding this regulation, we at the Murthy Law Firm
participated in a teleconference with the USCIS Ombudsman, Prakash I. Khatri.
We voiced some of our concerns, particularly about mailing delays. Our
report on that teleconference, and the responses to our concerns, are
summarized in our May 4, 2007
MurthyBulletin article, Ombudsman's
Teleconference on RFES / NOID Issues, available on MurthyDotCom. We hope that the USCIS will continue to use the 12-week
timeframe for the bulk of RFEs, and to
limit the use of the flexible deadlines
to a minimum of cases requiring the most easily attainable proof (such as better copies of documents already submitted).
It is rare for a NOID not to need 30 days for a
response since, by the time it is received and the draft response prepared,
the 30 days are almost over.
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