USCIS Regulation on Response Time for RFEs and NOIDs

[amwo 0]

USCIS Regulation on Response Time for RFEs and NOIDs

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.

Proposed Regulation of Nov 2004 is Finalized

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.

Flexible RFE Response Times

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.

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

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.

Denial Possible Without RFE / NOID

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.

USCIS Denial Likely if No Response Submitted

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.

Concerns with USCIS Regulation

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.

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.

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.

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.

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.

Murthy Participation in Teleconference on RFE / NOID Regulation

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 article, Ombudsman's Teleconference on RFES / NOID Issues, #3 in this week's MurthyBulletin. 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.

[rebeccajo 14]

If you want to read the actual information from USCIS, rather than some legal blathering, go to USCIS.gov and look for the press release.

USCIS has not clarified what "document easily obtained" means, beyond the example of a photograph.

What say we give a bit of time for experience reports regarding these RFE's before we panic?

[arwensun1965 1]

What say we give a bit of time for experience reports regarding these RFE's before we panic?

Absolutely

[amwo 0]

Who's panicking?

Just posting info for people who may be interested in it and who may want another source on it. It is a topic, no? And Murthy Law Firm is far from legal blathering.

What say we give a bit of a head's up regarding these RFE's before we are caught blind sided?

(Yet again another slight from rebeccajo. You still pissed at us for our quick green card approval?)